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APR 1 1 1994 



J KATHRINE R. EVERETT 
f LAW LIBRARY 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDER 



IN ADDITION 

Voting Rights Act 
NPDES Permit 



PROPOSED RULES 

Acupuncture Licensing Board 

Commerce 

Environment, Health, and Natural Resources 

Human Resources 

Nursing, Board of 

Professional Counselors, Board of 



[CClHo 



LIST OF RULES CODHTED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 



ISSUE DATE: April 4, 1994 



Volume 9 • Issue 1 • Pages 1-75 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 



TEMPORARY RULES 



The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the 
General Statutes. All proposed administrative rules and notices of 
public hearings filed under G.S. 150B-21.2 must be published in 
the Register. The Register will typically comprise approximately 
fifty pages per issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription 
at a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars (S8.00). 

Requests for subscription to the North Carolina Register should 
be directed to the Office of Administrative Hearings, 
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447. 



Under certain emergency conditions, agencies may issue 
temporary rules. Within 24 hours of submission to OAH, the 
Codifier of Rules must review the agency's written statement of 
findings of need for the temporary rule pursuant to the provisions in 
G.S. 150B-21.1. If the Codifier determines that the findings meet 
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If 
the Codifier determines that the findings do not meet the criteria, 
the rule is returned to the agency. The agency may supplement its 
findings and resubmit the temporary rule for an additional review 
or the agency may respond that it will remain with its initial 
position. The Codifier, thereafter, will enter the rule into the 
NCAC. A temporary rule becomes effective either when the 
Codifier of Rules enters the rule in the Code or on the sixth 
business day after the agency resubmits the rule without change. 
The temporary rule is in effect for the period specified in the rule or 
180 days, whichever is less. An agency adopting a temporary rule 
must begin rule-making procedures on the permanent rule at the 
same time the temporary rule is filed with the Codifier. 



ADOPTION AMENDMENT, AND REPEAL OF 
RULES 



NORTH CAROLINA ADMINISTRATIVE CODE 



The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 
150B of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must 
first publish notice of the proposed action in the North Carolina 
Register. The notice must include the time and place of the public 
hearing (or instructions on how a member of the public may request 
a hearing); a statement of procedure for public comments; the text 
of the proposed rule or the statement of subject matter; the reason 
for the proposed action; a reference to the statutory authority for the 
action and the proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days 
must elapse following publication of the notice in the North 
Carolina Register before the agency may conduct the public 
hearing and at least 30 days must elapse before the agency can take 
action on the proposed rule. An agency may not adopt a rule that 
differs substantially from the proposed form published as part of 
the public notice, until the adopted version has been published in 
the North Carolina Register for an additional 30 day comment 
period. 

When final action is taken, the promulgating agency must file 
the rule with the Rules Review Commission (RRC). After approval 
by RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative 
Hearings for publication in the North Carolina Administrative Code 
(NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or 
before filing with OAH for publication in the NCAC. 



The North Carolina Administrative Code (NCAC) is a 
compilation and index of the administrative rules of 25 state 
agencies and 38 occupational licensing boards. The NCAC 
comprises approximately 15,000 letter size, single spaced pages of 
material of which approximately 35% of is changed annually. 
Compilation and publication of the NCAC is mandated by G.S. 
150B-21.18. 

The Code is divided into Titles and Chapters. Each state agency 
is assigned a separate title which is further broken down by 
chapters. Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost of 
two dollars and 50 cents (S2.50) for 10 pages or less, 
plus fifteen cents (SO. 15) per each additional page. 

(2) The full publication consists of 53 volumes, totaling in 
excess of 15,000 pages. It is supplemented monthly 
with replacement pages. A one year subscription to the 
full publication including supplements can be 
purchased for seven hundred and fifty dollars 
(S750.00). Individual volumes may also be purchased 
with supplement service. Renewal subscriptions for 
supplements to the initial publication are available. 

Requests for pages of rules or volumes of the NCAC should be 
directed to the Office of Administrative Hearings. 



CITATION TO THE NORTH CAROLINA 
REGISTER 

The North Carolina Register is cited by volume, issue, page 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to 
Volume 1, Issue 1, pages 101 through 201 of the North Carolina 
Register issued on April 1, 1986. 



FOR INFORMATION CONTACT: Office of 
Administrative Hearings, ATTN: Rules Division, P.O. 
Drawer 27447, Raleigh, North Carolina 27611-7447, (919) 
733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann III, 

Director 
James R. Scarcella Sr., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDER 

Executive Order 40 1 

II. IN ADDITION 

Voting Rights Act 2 

NPDES Permit 3 

III. PROPOSED RULES 
Commerce 

Energy Division 4 

Environment, Health, and 
Natural Resources 

Wildlife Resources 38 

Human Resources 

Child Day Care 10 

Facility Services 4 

Mental Health, Developmental 
Disabilities and Substance Abuse 
Services 13 

Licensing Boards 
Acupuncture Licensing Board ... 44 

Nursing, Board of, 45 

Professional Counselors, Board of, 50 

IV. LIST OF RULES COFIFIED .53 
V. RRC OBJECTIONS 56 

VI. CONTESTED CASE DECISIONS 

Index to ALI Decisions 59 

Text of Selected Decisions 

93 OSP 0297 61 

93 OSP 0500 61 

93 OSP 0725 64 

93 DST 0785 69 

VII. CUMULATIVE INDEX 75 



NORTH CAROLINA REGISTER 

Publication Schedule 

(March 1994 - January 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 

for 

Filmg 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

15 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

to RRC 


** Earliest 

Effective 

Date 


8:23 


03/01/94 


02/08/94 


02/15/94 


03/16/94 


03/31/94 


04/20/94 


06/01/94 


8:24 


03/15/94 


02/22/94 


03/01/94 


03/30/94 


04/14/94 


04/20/94 


06/01/94 


9:1 


04/04/94 


03/11/94 


03/18/94 


04/19/94 


05/04/94 


05/20/94 


07/01/94 


9:2 


04/15/94 


03/24/94 


03/31/94 


05/02/94 


05/16/94 


05/20/94 


07/01/94 


9:3 


05/02/94 


04/11/94 


04/18/94 


05/17/94 


06/01/94 


06/20/94 


08/01/94 


9:4 


05/16/94 


04/25/94 


05/02/94 


05/31/94 


06/15/94 


06/20/94 


08/01/94 


9:5 


06/01/94 


05/10/94 


05/17/94 


06/16/94 


07/01/94 


07/20/94 


09/01/94 


9:6 


06/15/94 


05/24/94 


06/01/94 


06/30/94 


07/15/94 


07/20/94 


09/01/94 


9:7 


07/01/94 


06/10/94 


06/17/94 


07/18/94 


08/01/94 


08/22/94 


10/01/94 


9:8 


07/15/94 


06/23/94 


06/30/94 


08/01/94 


08/15/94 


08/22/94 


10/01/94 


9:9 


08/01/94 


07/11/94 


07/18/94 


08/16/94 


08/31/94 


09/20/94 


11/01/94 


9:10 


08/15/94 


07/25/94 


08/01/94 


08/30/94 


09/14/94 


09/20/94 


11/01/94 


9:11 


09/01/94 


08/11/94 


08/18/94 


09/16/94 


10/03/94 


10/20/94 


12/01/94 


9:12 


09/15/94 


08/24/94 


08/31/94 


09/30/94 


10/17/94 


10/20/94 


12/01/94 


9:13 


10/03/94 


09/12/94 


09/19/94 


10/18/94 


11/02/94 


11/21/94 


01/01/95 


9:14 


10/14/94 


09/23/94 


09/30/94 


10/31/94 


11/14/94 


11/21/94 


01/01/95 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of CivU Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 
of any public hearing, whichever is longer. See G.S. 150B-2 1.2(f) for adoption procedures. 

s The "Earliest Effective Date" is computed assuming that the agency follows the publication schedule above, 
that the Rules Reiiew Commission approves the rule at the next calendar month meeting after submission, and 
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next 
calendar month. 



Revised 03/94 



EXECUTIVE ORDER 



EXECUTIVE ORDER NO. 40 

AMENDING EXECUTIVE ORDER NUMBER 9 CONCERNING 

THE COMMISSION FOR A COMPETITIVE NORTH CAROLINA 

By the authority vested in me as Governor by the laws and Constitution of North Carolina, IT IS 
ORDERED: 

Section 2 of Executive Order Number 9 is hereby amended to read: 

Section 2. Membership. 

The Commission shall consist of up to 45 members appointed by the Governor. The membership may 
include representatives of the private sector, the nonprofit sector, local government, and the North Carolina 
General Assembly. 

This Executive Order shall be effective immediately. 

Done in Raleigh, North Carolina, this the 21st day of March, 1994. 



9:1 NORTH CAROLINA REGISTER April 4, 1994 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

JPT:DLK:GRS:emr Voting Section 

DJ 166-012-3 P.O. Box 66128 

94-0086 Washington. DC. 20035-6128 

March 10. 1994 

George A. Weaver, Esq. 

Lee. Reece & Weaver 

P. O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to the realignment of voting precincts in Wilson County. North Carolina, submitted to 
the Attorney General pursuant to Section 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C. 
1973c. We received your submission on January 10, 1994. 

The Attorney General does not interpose any objection to the specified change. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 
litigation to enjoin the enforcement of the change. See the Procedures for the Administration of Section 5 
(28 C.F.R. 51.41). 



Sincerely, 

James P. Turner 

Acting Assistant Attorney General 

Civil Rights Division 



By: 



Steven H. Rosenbaum 
Chief, Voting Section 



9:1 NORTH CAROLINA REGISTER April 4, 1994 



IN ADDITION 



STATE OF NORTH CAROLINA 

ENVIRONMENTAL MANAGEMENT COMMISSION 

POST OFFICE BOX 29535 

RALEIGH, NORTH CAROLINA 27626-0535 

PUBLIC NOTICE OF INTENT TO ISSUE STATE GENERAL 
NPDES PERMITS 



Public notice of intent to issue State National Pollutant Discharge Elimination System (NPDES) 
General Permits for Point Source Discharges of Stormwater associated with the following activities: 

1. NPDES General Permit No. NCG 140000 for stormwater point source discharges and rinse 
waters associated with activities classified as Ready Mixed Concrete [Standard Industrial Classification Code 
(SIC) 3273]. This General Permit is applicable to stormwater and rinse water discharges from industrial 
activities at those facilities as described above. Also included in this General Permit are stormwater 
discharges from those areas at the facilities described above which are used for vehicle maintenance activi- 
ties. 

2. NPDES General Permit No. NCG1 50000 for stormwater point source discharges associated with 
activities classified as general aviation Air Transportation [Standard Industrial Classification Code (SIC) 45] . 
This General Permit is applicable to stormwater discharges from areas where vehicle maintenance, including 
rehabilitation, mechanical repairs, painting, fueling, and lubrication; equipment cleaning operations or 
deicing operations are occurring at general aviation facilities. Specifically excluded from coverage under 
this General Permit are hub airports. 

On the basis of preliminary staff review and application of Article 21 of Chapter 143 of the General 
Statutes of North Carolina, Public Law 92-500 and other lawful standards and regulations, the North 
Carolina Environmental Management Commission proposes to issue State NPDES General Permits for the 
discharges as described above. 

INFORMATION: Copies of the draft NPDES General Permits and Fact Sheets concerning the draft 
Permits are available by writing or calling: 

Bill Mills 

Water Quality Section 

N.C. Division of Environmental Management 

P.O. Box 29535 

Raleigh, North Carolina 27626-0535 

Telephone (919) 733-5083 

Persons wishing to comment upon or object to the proposed determinations are invited to submit their 

comments in writing to the above address no later than May 4, 1994 . All comments received prior to that 

date will be considered in the final determination regarding permit issuance. A public meeting may be held 

where the Director of the Division of Environmental Management finds a significant degree of public 

interest in any proposed permit issuance. 

The draft Permits, Fact Sheets and other information are on file at the Division of Environmental Manage- 
ment, 512 N. Salisbury Street, Room 925-B, Archdale Building, Raleigh, North Carolina. They may be 
inspected during normal office hours. Copies of the information of file are available upon request and 
payment of the costs of reproduction. All such comments and requests regarding these matters should make 
reference to the draft Permit Numbers, NCG140000 or NCG150000. 



Date: 3/18/94 

A. Preston Howard, Jr., P.E., Director 

Division of Environmental Management 



9:1 NORTH CAROLINA REGISTER April 4, 1994 



PROPOSED RULES 



TITLE 4 - DEPARTMENT 
OF COMMERCE 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Energy Division, N. C. Depart- 
ment of Commerce intends to amend rule cited as 
4 NCAC 12C .0007. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 10:00 
a.m. on April 19, 1994 at the Energy Division, NC 
Dept. of Commerce, Conference Room, Rm. 1151 
1, 430 N. Salisbury, Street. Raleigh, NC 27611. 

Reason for Proposed Action: To accommodate 
the changes in the State Plan for Technical Assis- 
tance and Energy Conservation Measures: Grant 
Programs for Schools and Hospitals and for 
Buildings Owned by Units for Local Government 
and Public Care Institutions in accordance to the 
latest revision to Federal Rules and Regulations 10 
CFR Part 455. 

Ksomment Procedures: Comments received at the 
public hearing will be reviewed for inclusion in the 
North Carolina State Plan. Any interested person 
or organization may send written comments to the 
Energy Division, NC Department of Commerce, 
PO Box 25249, Raleigh, NC 27611, by May 5, 
1994. All written comments will become part of 
the record of the hearing. Any interested person 
or organization desiring an opportunity to make an 
oral presentation at the hearing must file a copy of 
the text of their comments with the Energy Division 
at the above address prior to the date of the 
hearing. All oral presentations may be limited as 
to time at the discretion of the Hearing Officer. 

CHAPTER 12 - ENERGY 

SUBCHAPTER 12C - ORGANIZATION 

.0007 INSTITUTIONAL CONSERVATION 
PROGRAM 

The Department of Economic and Community 
D e v e lopm e nt Commerce . Energy Division, has 
adopted a State Plan for Technical Assistance and 
Energy Conservation Measures: Grant Programs 
for Schools and Hospitals and for Buildings Owned 
by Units of Local Government and Public Care 



Institutions, as amended F e bruary 7, 1990 March 
9^ 1994 , pursuant to Title III of the National 
Energy Conservation Policy Act of 1978 (Public 
Law 95-619, 92 Stat. 3206, 42 U.S.C. Section 
8201). This State Plan, and any future amend- 
ments to this plan are incorporated herein by 
reference and is adopted in this Rule by reference 
as if written herein word for word. Copies of the 
State Plan may be obtained from the Energy 
Division, North Carolina Department of Economic 
and Community D e v e lopment Commerce , Post 
Office Box 25249. Raleigh, North Carolina 
27611. 

Statutory Authority G.S. 143B-429: 143B-430; 
143B-431: 143B-449: 150B-12: Title 111 NECPA, 
PL. 95-619, 92 Stat. 3206, 42 U.S.C. Section 
8201. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

jyiotice is hereby given in accordance with G.S. 
150B-21.2 that the Division of Facility Services 
intends to amend rules cited as 10 NCAC 3E 
.0101, .0106- .0107, .0111, .0201 - .0202, .0204 
-.0206. .0303 - .0306, and .0309 - .0311. 

1 he proposed effective date of this action is July 
1, 1994. 

1 he public hearing will be conducted at 2:00 
p.m. on April 19, 1994 at the Council Building, 
Room 201, 701 Barbour Drive, Raleigh, NC 
27603. 

Jxeason for Proposed Action: To amend abortion 
rules to bring them in line with nationally recog- 
nized standards of practice. 

Lsomment Procedures: Written comments should 
be submitted to Jackie Sheppard, 701 Barbour 
Drive, Raleigh, North Carolina 27603, by May 4, 
1994. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3E - CERTIFICATIONS 
OF CLINICS FOR ABORTION 

SECTION .0100 - CERTIFICATION 
PROCEDURE 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



.0101 DEFINITIONS 

The following definitions will a pply throughout 
this Subchapter: For th e purpos e of implementing 
G.S. 11 4 5.1, a "olinio"JB defin e d ao 

(1) "Clinic" means a freestanding facility (a 
facility neither physically attached nor 
operated by a licensed hospital) for the 
performance of abortions during the first 
20 weeks of pregnancy. 

(2) "Complication" includes but is not limit- 
ed to hemorrhage, infection, uterine 
perforation, cervical laceration and re- 
tained products of conception. 

(3) "Division" means the Division of Facility 
Services of the North Carolina Depart- 
ment of Human Resources. 



(41 
£5) 



"Fetal age" means the length of pregnan- 
cy as indicated by the date of conception. 
"Governing authority" means the individ- 
ual, agency or group or corporation 
appointed, elected or otherwise designat- 
ed, in which the ultimate responsibility 
and authority for the conduct of the 
abortion clinic is vested . 
"New facility" means one that is not 
certified as an abortion clinic by the 
Division as of July L 1994, and has not 



(61 



been certified within the previous six 
months of the application for certifica- 
tion. 

Statutory Authority G.S. 14-45. 1(a). 

.0106 APPLICATION 

(a) Prior to the admission of patients, an appli- 
cation from the clinic for certification shall be 
submitted to and approved by the Division ef 
Faoility S e rvic e s . 

(b) Application forms may be obtained by 
contacting the Division of Faoility S e rvic e s . 

(c) The application form vAU shall set forth the 
ownership, staffing patterns, clinical services to be 
rendered, professional staff in charge of services, 
and general information that would be helpful to 
the Division's understanding fully of the clinic's 
operating program. 

(d) After construction requirements in Section 
.0200 of this Subchapter have been met and the 
application for certification has been received and 
approved, the Division shall conduct an on-site, 
certification survey. 

(e) Each certificate must be renewed at the 
beginning of each calendar year. The governing 
authority shall file an application for renewal of 
certification with the Division at least 30 days 



prior to the date of expiration on forms furnished 
by the Division. Failure to file a renewal applica- 
tion shall result in expiration of the certificate to 
operate. 

Statutory Authority G.S. 14-45. 1(a). 

.0107 ISSUANCE OF CERTIFICATE 

(a) The Division shall issue a certificate if it 
finds the applicant and facility comply with Sec 
tions .0200, .0300 and .0 4 00 of this Subchapter. 
can: 

(1) Comply with all requirements described 
in this Subchapter; and 

(2) Assure that, in the event that complica- 
tions arise from the abortion procedure, 
an OB-GYN board certified or board 
eligible physician shall be available. 

(b) Each certificate shall be issued only for the 
premises and persons or organizations named in 
the application and shall not be transferable ef 
assignable except with the written approval of the 
Division . 

(c) The governing authority shall notify the 
Division in writing, within 10 working days, of 
any change in the name of the facility or change in 
the name of the administrator, 

(d) The facility shall report to the Division all 
incidents, within 10 working days, of vandalism to 
the facility such as fires, explosions or other action 
causing disruption of services. 

Statutory Authority G.S. 14-45. 1(a). 

.0111 INSPECTIONS 

(a) The Division shall make or cause to be made 
such inspections as it may deem necessary. 

(b) The Division may delegate to any state 
officer, agent, board, bureau division, or section 
of state government authority to make such inspec 
tions as the Division may designate and according 
to rules and regulations promulgated by the Modi 
oal Care Commi ss ion. The Division shall have 
authority to investigate any complaint relative to 
the care, treatment or complications of any patient. 

(c) The Division may revoke s uch delegated 
authority at its discretion and make its own inspec 
tions according to the powers granted hereunder. 
Representatives of the Division may review any 
records in any medium necessary to determine 
compliance with the rules, while maintaining the 
confidentiality of the complainant and the patient. 

Statutory Authority G.S. 14-45.1 (a). 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



SECTION .0200 - MINIMUM STANDARDS 
FOR CONSTRUCTION AND EQUIPMENT 

.0201 BUILDFNG CODE 
REQUIREMENTS 

(a) The physical plant for a clinic facility must 
meet or exceed minimum requirements of the 
North Carolina State Building Code for cla ss B 1 
construction Group B occupancy (business office 
facilities) which is incorporated by reference 
including subsequent amendments . Copies of The 
North Carolina Building Code, Volume One, 
General Construction, may be obtained for thirty 
dollars ($30.00) from the N.C. Department of 
Insurance, P.O. 26487, Raleigh, NC 27611. 

(b) The requirements contained in Rule .0206 of 
this Section shall apply only to new facilities and 
renovations of previously certified facilities. 

Statutory Authority G.S. 14-45. 1(a). 

.0202 SANITATION 

Abortion clinics must comply with the rules and 
r e gulations governing the sanitation of privat e 
hospitals, nursing and rest homes, sanitariums, 
sanatoriums and educational and other institutions, 
contained in 10 NCAC 10A 15A NCAC 18A 
. 1300 which js hereby incorporated by reference 
including subsequent amendments and editions- 
Copies of 15A NCAC 1 8 A . 1 300 may be obtained 
at no charge from the Environmental Health 
Section, Health Division, N.C. Department of 
Environment, Health, and Natural Resources, RO. 
Box 27687, Raleigh. NC 27611-7687. 

Statutory Authority G.S. 14-45. 1(a). 

.0204 CORRIDORS 



Mi 



inob s 



Unimum unobstruct e d width of corridors shall 
b e six f ee t. The width of corridors shall be suffi- 
ci ent to allow for patient evacuation by stretcher, 
but in no case shall patient-use corridors be less 
than 60 inches. 

Statutory Authority G.S. 14-45.1 (a). 

.0205 DOORS 

Minimum width of doors to all rooms needing 
access for stretchers shall be three feet. No door 
shall swing into corridors in a manner that might 
obstruct traffic flow or reduce the required corri- 
dor width except doors to spaces such as small 
closets not subject to occupancy. 

Statutory Authority G.S. 14-45.1 (a). 



Area 

Procedure 

Recovery 



.0206 ELEMENTS AND EQUIPMENT 

The physical plant shall provide appropriate 
elements and equipment to carry out safely and 
ad e quat e ly the functions of the clinic in conso 
nanc e with th e curr e nt standard s of medical prac 
tteer facility with the following minimum require- 
ments: 
(1) Mechanical requirements 
(a) Temperatures and humidities: 

(i) The mechanical systems shall be 
designed to provide the temperature 
and humidities shown below: 

Temperature Relative Humidity' 
70-76 degrees F. 50-60 % 
75-80 degrees F 
All air supply and exhaust systems for 
the procedure suite and recovery area 
shall be mechanically operated. All fans 
serving exhaust systems shall be located 
at the discharge end of the system. The 
ventilation rates shown herein shall be 
considered as minimum acceptable 
rates. 
The ventilation system shall be de- 
signed and balanced to provide the 
pressure relationships shown herein. 
All air supplied to procedure rooms 
shall be delivered at or near the ceil- 
ing of the room and all exhaust or 
return from the area shall be removed 
near the floor level at not less than 
three inches above the floor, 
(iii) Corridors shall not be used to supply 
air to or exhaust air from any proce- 
dure or recovery room except to 
maintain required pressure relation- 
ships. 

All ventilation or air conditioning 
systems serving procedure rooms shall 
have a minimum of one filter bed 
with a minimum filter efficiency of 80 
percent. 

Ventilation systems serving the proce- 
dure or recovery rooms shall not be 
tied in with the soiled holding or 
work rooms, janitors' closets or lock- 
er rooms if the air is to be recirculat- 



ih 



iii) 



(iv) 



£Y) 



ed in any manner. 

(vi) Air handling duct systems shall not 
have duct linings in ducts serving 
procedure or recovery rooms. 

(vii) The following general air pressure 
relationships to adjacent areas and 
ventilation rates shall apply: 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



> 



Area 

Air 

Changes/Hour 

Procedure 

Recovery 



Pressure Relationship Minimum 



P 
P 



6 

6 



10 



Soiled work, 

janitor's closet, 

toilets. 

Soiled holding N 

Clean work or 
Clean holding P 



(P= positive pressure N ^_ negative pressure) 

(2) Plumbing And Other Piping Systems 
(a) Medical Gas and Vacuum Systems 
(i) Piped-in medical gas and vacuum 
systems, if installed, shall meet the 
requirements of NFPA-99-1990, type 
one system, which is hereby incorpo- 
rated by reference including subse- 
quent amendments and editions. Cop- 
ies of NFPA-99-1990 may be pur- 



lii) 



chased from the National Fire Protec- 
tion Association, \_ Batten/march 
Park, P.O. Box 9101, Quincy, MA 
02269-9101, for twenty eight dollars 
and fifty cents ($28.50). 
If inhalation anesthesia is used in any 
concentration, the facility must meet 
the requirements of NFPA 70-1993 
and NFPA 99-1990, current editions 
inhalation 



relating to 
which are hereby 



reference 



anesthesia, 
incorporated by 
including subsequent 



amendments and editions. Copies of 
NFPA 70-1993 and NFPA 99-1990 
may be purchased from the National 
Fire Protection Association, 1 
Batten/march Park, P.O. Box 9101, 
Quincy, MA 02269-9101, for thirty 



two dollars and 
and 



_ fifty cents ($32.50) 
twenty eight dollars and fifty 



fbi 



> 



cents ($28.50) respectively. 
Lavatories and sinks for use by medical 
personnel shall have the water supply 
spout mounted so that its discharge 
point is a minimum distance of five 
inches above the rim of the fixture with 
mixing type fixture valves which can be 
operated without the use of the hands, 
(c) Hot water distribution systems shall 
provide hot water at hand washing and 



icj 



bathing facilities at a minimum 
temperature of 100 degrees F and a 
maximum temperature of 1 16 degrees 
E 

(d) Floor drains shall not be installed m 
procedure rooms. 

(e) Building drainage and waste systems 
shall be designed to avoid installations 
in the ceiling directly above procedure 
rooms. 

(3) Electrical Requirements 

(a) Procedure and recovery rooms, and 
paths of egress from these rooms to the 
outside shall have at a minimum, listed 
battery backup lighting units of one and 
one-half hour capability that will 
automatically provide at least five foot 
candles of illumination at the floor in 
the event of a utility or local lighting 
circuit failure. 

Essential electrically operated medical 
equipment necessary for the safety of 
the patient shall have, at a minimum, 
battery backup. 

Receptacles located within six feet of 
sinks or lavatories shall be ground-fault 
protected. 

Provide at least one wired-in, 
ionization-type smoke detector within 
15 feet of each procedure or recovery 
room entrance. 

(4) Each facility and its grounds shall be 
maintained to minimize hazards and 
enhance s afety for staff and patients. 
Buildings systems and medical equipment 
must have preventative maintenance 
conducted as recommended by the 
equipment manufacturers' or installers' 
literature to assure satisfactory operation. 

(5) The requirements contained m Rule 
.0206 of this Section shall apply only to 
new facilities and renovations of 
previously certified facilities. 

Statutory Authority G.S. 14-45. 1(a). 

SECTION .0300 - ADMINISTRATION 

.0303 POLICIES AND PROCEDURES 

The person in charg e of th e olinio governing 
authority shall prepare a manual of clinic policies 
and procedures for use by employees and medical 
staff to assist them in understanding their 
responsibilities within the organizational 
framework of the clinic. These shall include: 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



(1) Patient selection and exclusion criteria, 
and clinical discharge criteria. 

(2) Policy and procedure for each type of 
abortion procedure performed at the 
clinic. 

(3) Protocol for determining fetal age. 

(4) Protocol for referral of patients for whom 
services have been declined. 

(5) Protocol for discharge instructions that 
informs patients who to contact for post- 
procedural emergencies. 

Statutory Authority G.S. 14-45.1 (a). 

.0304 ADMISSION AND DISCHARGE 

(a) There shall be on the premises throughout all 
hours of operation an employee authorized to 
receive patients and to make administrative deci- 
sions on their disposition. 

(b) All patients shall be admitted only under the 
care of a qualifi e d physician who is currently 
licensed to practice medicine in North Carolina. 

(c) Any patient not discharged within 12 hours 
following the abortion procedure shall be trans- 
ferred to a general hospital. 

(d) Th e saf e ty and l e gal rights of all pati e nts 
shall b e insur e d. The facility shall make available 
in writing to al] patients upon admission the 
following: 

(1) A fee schedule and any extra charges 
routinely applied; 

(2) Instructions for post-procedure emer- 
gencies; 

(3) Grievance procedures a patient may 
follow if dissatisfied with the care and 
services rendered; and 

(4) The telephone number of the 
Complaints Investigation Branch of the 
Division. 

Statutory Authority G.S. 14-45. 1(a). 

.0305 MEDICAL RECORDS 

(a) A complete and permanent record shall be 
maintained for all patients including the date and 
time of admission and discharge, the full and true 
name, address, date of birth, nearest of kin, 
diagnoses, duration of pregnancy condition on 
admission and discharge, referring and attending 
physician, a witnessed, voluntarily-signed consent 
for surgery, authenticated history and physical 
examination including identification of pre-existing 
or current illnesses, drug sensitivities or other 
idiosyncrasies having a bearing on the operative 
procedure or anesthetic to be administered. 



(b) All other pertinent information such as pre- 
and post-operative instructions, couns e ling, labora- 
tory report, drugs administered, report of opera- 
tion and follow-up instruction including family 
planning advice shall be recorded and authenticat- 
ed. 

(c) If Rh is negative, the significance shall be 
explained to the patient and so recorded. The 
patient in writing may reject or accept the appro- 
priate desensitization material. A written record of 
the patient's decision shall be a permanent part of 
her medical record. 

(d) An ultrasound examination shall be per- 
formed and the results posted in the patient's 
medical record for any patient whose fetal age is 
estimated to be J_2 weeks or greater and for any 
patient where there is determined to be a size or 
date discrepancy. 

(e) The facility shall maintain a daily procedure 
log of al] patients receiving abortion services. 
This log shall contain at least patient name, esti- 
mated length of gestation, type of procedure, name 
of physician, name of RN on duty, and date and 
time of procedure. 

(f) Medical records shall be the property of the 
facility and shall be preserved or retained for at 
least 20 years regardless of change of facility 
ownership or administration. Such medical re- 
cords shall be made available to the Division upon 
request and shall not be removed from the premis- 
es where they are retained except by subpoena or 
court order. 

(g) The facility shall have a plan for destruction 
of medical records to identify information to be 
retained and the manner of destruction to ensure 
confidentiality of all material . 

(h) Should a facility cease operation, arrange- 
ments shall be made for preservation of records 
for at least 20 years. The facility shall notify the 
Division, in writing, concerning the arrangements. 

Statutory Authority G.S. 14-45.1 (a). 

.0306 PERSONNEL RECORDS 

(a) Application. Each prospective employee 
must submit an application for employment which 
provid e s — a s uffici e nt outlin e of p e rsonal — back 
ground, id e ntification, includes education, training, 
experience, and references. 

(b) H e alth Examinations. All p e rsonnel s hall b e 
giv e n — a — pr e e mploym e nt — phy s ical — e xamination 
including scr ee ning for communicabl e dis e as e s. 
Th e phy s ical examination is to b e r e peated annual 
ly on all p e rsonn e l. — Any p e rson who shows signs 
of r e spiratory infection, skin l e sion s , diarrh e a, or 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



other oommunioablo dis e ases shall b e e xclud e d 
from work if, in the judgm e nt of a phyoioian, it is 
nooosoary to do so for th e prot e ction of pati e nts 
and others. Job Descriptions: 

(1) The facility shall have a written 
description which describes the duties 
of every position. 

(2) Each job description shall include 
position title, authority, specific 
responsibilities and minimum 
qualifications. Qualifications shall 
include education, training, experience, 
special abilities and license or 
certification required. 

(3) The facility shall review annually and 
update all job descriptions, and shall 
provide a current copy to each 
employee assigned to the position. 

(c) Records. R e oords — of application — aed 

phyoioal examination shall b e available for r e vi e w 
by the Division. The facility shall provide an 
orientation program to familiarize each new 
employee with the facility, jts policies and the 
employee's job responsibilities. 

(d) The governing authority shall be responsible 
for implementing health standards, for employees, 
which are consistent with recognized professional 
practices for the prevention and transmission of 
communicable diseases. 

(e) E mployee records for health screening, 
education, training and verification of professional 
certification shall be available for review by the 
Division. 

Statutory Authority G.S. 14-45. 1(a). 

.0309 LABORATORY SERVICES 

(a) Pre-operative Tests. As a minimum, there 
shall be performed for each patient the following 
laboratory tests which must be recorded in the 
patient's medical record prior to the abortion: 
hematocrit, — RH — factor, — urinalysis — at — least — by 
dipstick, 

(1) Pregnancy testing, except when a 
positive diagnosis of pregnancy has 
been established by ultrasound; 

(2) Anemia testing (hemoglobin or 
hematocrit); and 

(3) Rh factor testing. 

(b) Blood and Blood Products. Those patients 
requiring the administration of blood shall be 
transferred immediately to a local hospital having 
blood bank facilities. 

(c) The facility shall have instructions for each 
test procedure performed, including: 



(1) Sources of reagents, standard and cali- 
bration procedures; and 

(2) Information concerning the basis for the 
listed "normal" ranges. 

(d) The facility shall perform and document, at 
least quarterly, calibration of equipment and 
validation of test results. 

Statutory Authority G.S. 14-45. 1(a). 

.0310 EMERGENCY BACK-UP SERVICES 

An abortion olinio shall provid e for emergency 
book up s e rvic e s. The facility shall provide 
intervention for emergency situations. These 
provisions Provisions shall include but are not 
limited to: 

(1) A "ood e blu e " ( e m e rg e noy) procedure for 
olinio p e rsonnel; Basic cardio-pulmonary 
life support; 

(2) Appropriat e surgical, an e sth e tic, r e susoi 
tative and oth e r e merg e noy — life saving 
e quipment and m e dication s availabl e in 
th e olinio; Emergency protocols for: 

(a) Venous access supplies, 

(b) Air-way support and oxygen, 

(c) Bag- valve mask unit with oxygen reser- 
voir, and 

(d) Suction machine; 

(3) Emergency lighting available in the oper- 
ating room-rj and 

(4) Ultrasound equipment. 

Statutory Authority G.S. 14-45. 1(a). 

.0311 SURGICAL SERVICES 

(a) Facilities. The operating room shall be 
maintained exclusively for surgical procedures and 
shall be so designed and maintained to provide an 
atmosphere free of contamination by pathogenic 
organisms. The facility shall establish procedures 
for infection control and universal precautions. 

(b) Tissue Examination: 

(1) The physician performing the abortion 
is responsible for examination of all 
products of conception (P.O.C.) prior 
to patient discharge . Such examination 
shall note specifically the presence or 
absence of chorionic villi and fetal parts 
or the amniotic sac. The P.O.C. must 
b e w e ighed and th e w e ight and the 
results of the examination shall be 
recorded in the patient's medical re- 
cord. 

(2) In cases where the gestational age i s 
es timat e d to b e 10 w ee ks or l e ss or 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



fetal parts and chorionic villi or th e 
amniotic sac is not id e ntified by gross 
e xamination, a microscopic e xamination 
by a board c e rtified or board e ligibl e 
pathologist must be done on th e P.O.C. 
with th e r e sults r e cord e d in th e pati e nt's 
m e dical record. The facility shall have 
written procedures, supplies and equip- 
ment available for gross and microscop- 
ic evaluation of abortion specimens. If 
placental or fetal tissue js not identified 
by gross examination, a microscopic 
examination must be done on the 
P. O. C. In cases where the microscopic 
evaluation is negative for chorionic villi 
and fetal parts, or the weight of the 
P. O. C. falls substantially below the 
appropriate weight range for the fetal 
age, a microscopic examination by a 
board certified or board eligible pathol- 
ogist shall be done on the P.O.C. 



(3) In cases where th e gestational ago is 
estimat e d to be greater than 10 weeks, 
th e w e ight of th e P.O.C. falls substan 
tially — b e low — tke — appropriate — weight 
range for th e gestational ag e . and chori 
onic villi and fetal parts or th e amniotic 
sac is not identifi e d by gross e xamina 
tion furth e r examination of the P.O.C. 
such as microscopic e xamination, and 
further evaluation of the pati e nt ar e 
required. The results of this examina- 
tion, the findings of further patient 
evaluation and any subsequent treatment 
must be recorded in the patient's medi- 
cal record. 

(4) The facility shall establish procedures 
for obtaining, identifying, storing and 
transporting specimens. 

(5) The facility shall establish a method for 
follow-up of patients on whom no villi 
are seen. 



Statutory Authority G.S. 14-45.] (a). 






Notice is hereby given in accordance with G.S. 150B-21.2 that the Child Day Care Commission intends 
to amend rules cited as 10 NCAC 3U .0712 - .0713, .2607. 

1 he proposed effective date of this action is July 1 , 1994. 

1 he public hearing will be conducted at 10:00 a.m. on May 5, 1994 at the Council Building. Room 201 , 
707 Barbour Drive, Raleigh, NC 27603. 

Ixeas on for Proposed Action: Change in G.S. 110-91(7). 

Lsomment Procedures: Comments may be presented in writing any time before or at the public hearing or 
oralh at the hearing. Time limits for oral remarks may be imposed by the Commission Chairman. Any 
person may request copies of these Rules by calling or writing to Margaret Guess, Division of Child 
Development. P.O. Box 29553, Raleigh, NC 27626-0553, (919) 733-4801. 

CHAPTER 3 - FACILITY SERVICES 

SUBCHAPTER 3U - CHILD DAY CARE STANDARDS 

SECTION .0700 - HEALTH AND OTHER STANDARDS FOR CENTER STAFF 



.0712 STAFF/CHILD RATIOS FOR SMALL CENTERS 

(a) The staff/child ratios and group sizes for a small day care center are as follows: 



Ag e of Children 



No. Childr e n 



No. Staff 



Group Siz e 



to 5 y e ars 



1 to 5 years 

2 to 5 y e ars 



44 



49- 



439 



10 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



3 to 5 years 



45- 



-3S 



5 years and old e r 



-24 



Maximum 



Age of Children 


No. Children 


No 


. Staff 


Group Size 


No. Staff 


to 12 Months 


5 




I 


10 


2 


12 to 24 Months 


6 




1 


12 


2 


2 to 3 Years 


10 




I 


20 


2 


3 to 5 Years 


15 




I 


25 


2 


5 Years and Older 


25 




i 


25 


2 



(b) When only one caregiver is required to meet the staff/child ratio, and children under two years of age 
are in care, that person shall not concurrently perform food preparation or other duties which are not direct 
child care responsibilities. 

(c) When only one caregiver is required to meet the staff/child ratio, the operator shall select one of the 
following options for emergency relief: 

(1) The center shall post the name, address, and telephone number of an adult who has agreed in 
writing to be available to provide emergency relief and who can respond within a reasonable 
period of time; or 

(2) There shall be a second adult on the premises who is available to provide emergency relief. 

Statutory Authority G.S. 110-91(7); 143B-168.3. 



.0713 STAFF/CHILD RATIOS FOR MEDIUM AND LARGE CENTERS 

(a) The staff/child ratios and group sizes for single-age groups of children in medium and large day care 
centers are as follows: 



of Children 



Ago ot Chil 
to 1 years 



1 to 2 y e ars 



2 to 3 years 

3 to 4 years 



4 to 5 years 



5 years and old e r 



No. Children 



No. Staff 



42- 



45- 



^0- 



-35- 



Group Size 



43 



44 



-2A 
^5 
-35 
^5 



Children 


No. Staff 


Group Size 


Nc 


. Staff 


5 


I 


iO 




2 


6 


1 


12 




2 


10 


1 


20 




2 


15 


I 


25 




2 


20 


I 


25 




2 


25 


1 


25 




2 



Maximum 
Age of Children No. 

to 12 Months 
12 to 23 Months 

2 to 3 Years 

3 to 4 Years 

4 to 5 Years 

5 Years and Older 

(b) In any multi-age group situation, the staff/child ratio for the youngest child in the group shall be 
maintained for the entire group. 

(c) Children younger than two years old may be cared for in groups with older children at the beginning 
and end of the operating day provided the staff/child ratio for the youngest child in the group is maintained. 

(d) A child two years of age and older may be placed with children under one year of age when a 
physician certifies that the developmental age of the child makes this placement appropriate. 

(e) When determined to be developmentally appropriate by the operator and parent, a child age two or 
older may be placed one age level above his or her chronological age without affecting the staff/child ratio 
for that group. This provision shall be limited to one child per group. 

(f) Except as provided in Paragraphs (c) and (d), children under one year of age shall be kept separate 
from children two years of age and over. Also, children between the ages of 12 months and 24 months 
shall not be routinely grouped with older children unless all children in the group are less than three years 
old. 

(g) When only one caregiver is required to meet the staff/child ratio, and children under two years of age 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



11 



PROPOSED RULES 



are in care, that person may concurrently perform food preparation or other duties which are not direct child 
care responsibilities as long as supervision of the children as specified in Rule .0714(e) of this Section is 
maintained. 

(h) When only one caregiver is required to meet the staff/child ratio, the operator shall select one of the 
following options for emergency relief: 

( 1 ) The center shall post the name, address, and telephone number of an adult who has agreed in 
writing to be available to provide emergency relief and who can respond within a reasonable 
period of time; or 

(2) There shall be a second adult on the premises who is available to provide emergency relief. 

(i) Except as provided in Paragraph (g) of this Rule, staff members and administrators who are counted 
in meeting the staff/child ratios as stated in this Rule shall not concurrently perform food preparation or 
other duties which are not direct child care responsibilities. 

Statutory Authority G.S. 110-91(7); 143B-168.3. 

SECTION .2600 - REQUIREMENTS FOR LARGE DAY CARE HOMES 

.2607 STAFF/CHILD RATIOS AND SUPERVISION 

(a) The staff/child ratios and group sizes for a large child day care home are as follows: 



Age of Children 



Numb e r of Children 



Number of Staff 



Group S ize 



to 4 years 



4- 



43 



Ag e of Childr e n - 



Numb e r of Child ren- 



Number of Staff 



Group S ize 



-8- 



to 13 years 

(No more than three childr e n may be less than 12 months old) 



4- 



44 



Age of Childr e n - 



Number of Childr e n 



Numb e r of Staff 



Group S ize 



2 to 1 3 years 



40- 



44 



3 to 13 years 
School ag e d — 



42- 



44 



4S- 



4? 



of Children 



to 4 years 



No. Children 



No. Staff 



Maximum 

Group Size 

10 



No. Staff 



Age of Children 
to 13 years 



No. Children 



No. Staff 
1 



Maximum 

Group Size 

10 



No. Staff 



Age of Children 

2 to J_3 years 

3 to J_3 years 
All School-aged 



No. Children 
1Q 

J_2 
15 



No. Staff 

1 



! 



Maximum 

Group Size 

12 

12 
15 



No. Staff 

2 
2 

2 



(b) When only one caregiver is required to meet the staff/child ratio, the operator shall make available to 
parents the name, address and phone number of an adult who is nearby and available for emergency relief. 

(c) Children shall be adequately supervised at all times. All children who are not asleep or resting shall 
be visually supervised. Children may sleep or rest in another room so long as a caregiver can hear them and 
respond immediately. 

Statutory Authority G.S. 110-86(3); 110-91(7); 143B-168.3. 



12 



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NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Director of the Division of 
Mental Health, Developmental Disabilities and 
Substance Abuse Services intends to amend rules 
cited as 10 NCAC 14C .0716; 18F .0312 - .0320; 
and adopt rules cited as 10 NCAC 14C .1148; 18F 
.0321 - .0323; 18J .0119, .0801 - .0805. 

1 he proposed effective date of this action is July 
1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on May 10, 1994 at the Wake County Com- 
mons Building, 4011 Carya Drive, Raleigh, N.C. 
27610. 

Jxeason for Proposed Action: 
10 NCAC 14C .0716 - To allow supervisor to 
initiate disciplinary action when penalty is not 
paid. 

10 NCAC 14C .1148 - To put in place a Rule to 
govern funds appropriated to the Division for the 
provision of services to Thomas S. Clients. 
10 NCAC 18F .0312 - .0323 - To provide clarifi- 
cation of requirements for providing DW1 assess- 
ments. 

10 NCAC 18] .0119, .0801 - .0805 - To comply 
with G.S. 122C-151.4 in establishing an Area 
Authority Appeals Panel to resolve disputes for 
contracting agencies. 

Lsomment Procedures: Any interested person may 
present comments by oral presentation or submit- 
ting a written statement. Persons wishing to make 
oral presentations should contact Charlotte Tucker, 
Division of Mental Health, Developmental Disabil- 
ities and Substance Abuse Services, 325 N. Salis- 
bury Street, Raleigh, N. C. 27603, (919) 733-4774. 
Comments submitted as a written statement must 
be sent to the above address no later than May 9, 
1994, and must state the rules to which comments 
are addressed. Time limits for oral remarks may 
be imposed. Fiscal information regarding these 
Rules is available from the Division, upon request. 

CHAPTER 14 - MENTAL HEALTH: 
GENERAL 

SUBCHAPTER 14C - GENERAL RULES 



SECTION .0700 - RULES GOVERNING 

DEPORTMENT: TRAFFIC: PARKING 

AND REGISTRATION OF VEHICLES 

AT DIVISION INSTITUTIONS 

.0716 VIOLATIONS 

(a) Violation of the rules in this Section shall 
subject the offender to a civil penalty. The offend- 
er and the person to whom the vehicle is registered 
may be charged civil penalties for non-moving 
violations as follows: 

(1) employees only: 

(A) failure to register a vehicle, five 
dollars ($5.00); 

(B) failure of a registered vehicle owner 
to secure a temporary permit when 
using a non-registered vehicle, two 
dollars ($2.00); 

(C) failure to display or improper display 
of parking sticker, two dollars 
($2.00); and 

(D) failure to remove expired parking 
sticker, two dollars ($2.00); and 

(2) all violators: 

(A) parking in a restricted area or 
restricted parking space, five dollars 
($5.00); 

(B) blocking a fire hydrant, five dollars 
($5.00); 

(C) parking on grass, five dollars ($5.00); 

(D) blocking a walkway, two dollars 
($2.00); 

(E) double parking or parking in driving 
lane, five dollars ($5.00); 

(F) improper use of a service zone, five 
dollars ($5.00); 

(G) parking out of space, two dollars 
($2.00); 

(H) parking with rear of vehicle to curb, 

two dollars ($2.00); 
(I) overtime parking, two dollars ($2.00); 
(J) parking in "non-parking" zone, five 

dollars ($5.00); and 
(K) parking in a "handicapped space," 

twenty-five dollars ($25.00). 

(b) Civil penalties for non-moving violations 
listed in (a) of this Rule shall be processed as 
follows: 

(1) By the fifth calendar day of the month 
following the citation, the face value of 
the penalty indicated may be paid by 
writing on the ticket the name of the 
person to whom the vehicle is 
registered and mailing it together with 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



13 



PROPOSED RULES 



payment to the person or office as 
designated on the citation by the 
institution director. 

(2) If the person receiving the citation feels 
that the citation was unjustly issued, a 
request for review may be made in 
writing to the director of the institution. 
The request for review shall be made 
within five days of the date the citation 
was issued and shall state the reason for 
review. The director shall notify the 
person in writing of the final decision 
regarding the review. If the decision 
sustains the issuance of the citation, the 
date of written notice shall become the 
effective date of issue of the citation 
and the penalty shall be paid according 
to the instructions in (b)(1) of this Rule. 
If the review determines a citation 
should not have been issued, no further 
action shall be required. 

(3) If the penalty is not paid by the fifth 
calendar day of the month following the 
citation, the institution director shall 
mail a notice to the person in whose 
name the vehicle is registered. If the 
offender is an institution employee, the 
division supervisor and the appropriate 
supervisor shall also be instructed to 
contact the registrant. 

(4) If the penalty is not paid by the last 
calendar day of the month following the 
citation, the institution director shall 
initiate e nforc e m e nt by civil action in 
th e natur e of a d e bt. : 

(A) initiate enforcement by civil action in 
the nature of a debt; 

(B) instruct the employee's supervisor to 
initiate disciplinary action; or 

(C) employ both actions. 

(c) Court citations shall be issued for all 
violations not listed in (a) of this Rule including all 
violations of state motor vehicle laws, all speeding 
violations, violations arising from failure to obey 
traffic control signs or devices, and violations of 
deportment and grounds control requirements. 
The offender shall be cited to stand trial for the 
alleged offense in the General Court of Justice by 
the officer observing the violation. 

Statutory Authority G.S. 20-37. 6(f); 143-116.6; 
143-116.7. 

. 1 148 THOMAS S. COMMUNITY SERVICES 

(a) Funds appropriated to the Division for 



members of the Thomas S^ Class as identified in 
the Thomas S^et aL v. Britt, formerly Thomas 
S., et al v^ Flaherty lawsuit, shall be expended 
only for programs serving Thomas Jv. Class 
members or for services for those clients who are: 
(1) adults with mental retardation, or who 
have been treated as if they had mental 



(21 



1A] 



m 



retardation, who were admitted to a 
State psychiatric hospital on or after 
March 22, 1984, and who are included 
on the Division of Mental Health, 
Developmental Disabilities, and 
Substance Abuse Services' official list 
of prospective class members including 
focus class members; or 
adults with mental retardation who: 
have a documented history of State 
psychiatric hospital admission 
regardless of admission date; or 
have never been admitted to a State 
psychiatric hospital, but who have a 
documented history of behavior 
determined to be of danger to self or 
others that results in referrals for 
inpatient psychiatric treatment; and 
without funding support, have a good 
probability of being admitted to a 
State psychiatric hospital. 
Expenditures for services to clients listed in 
Subparagraph (a)(2) of this Rule are limited by 
legislation and require specific approval by the 
Division. 

(b) Programs operated by an area program or a 
program contracted by the area program to provide 
services may spend Thomas S. Services funds for 
the following: 



[£l 



ill 

01 

13] 
(4) 

(SI 

16} 



facility rental; 

utilities; 

staffing; 

supplies; 

travel; 

rental and purchase of administrative 

and program equipment according to 

the following provisions: 

(A) equipment is defined as purchases 
costing five hundred dollars ($500.00) 
or more and having a useful life of at 
least one year; 

(B) all equipment purchased with Thomas 
& Services funds will be inventoried 
and identified as Thomas & 
equipment and must be used for 
Thomas S^ Services; 

(C) equipment may be held in the name of 
a contract provider with the 



14 



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NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



stipulation that if the equipment 
ceases to be used to provide services 
to Thomas S^ clients, ownership 
reverts to the contracting area 
program who must then contact the 
Division for disposition instructions; 

(D) the Division must be notified 
whenever equipment purchased with 
Thomas S^ Services funds ceases to 
be used to provide services to Thomas 
5v clients for 45 consecutive days; 
and 

(E) the dis position of equipment 
purchased with Thomas S^ Services 
funds requires Division approval ; 

(7) administrative costs which can be 
clearly documented as Thomas 5v 
administrative costs through direct 
assignment or Division approved cost 
allocation methodology; 

(8) transportation of clients; 

(9) other program costs as approved by the 
Division; 

(10) in accordance with G.S. 122C-147, the 
purchase, construction, alteration, 
improvement, or rehabilitation of a 
facility owned by the area program or 
county for the provision of day/ night 
and 24-hour services by an area 
program or non-profit contract agency; 
or mortgage payments for private 
non-profit agencies according to the 
following provisions: 

(A) prior to the purchase of an existing 
facility, the area program or 
non-profit contract agency through the 
area program, shall submit two 
property appraisals, completed by 
licensed real estate appraisers, to the 
Division for approval . Approved 
funding will be released by the 
Division after approval of the 
appraisals; 

(B) application and approval for 
construction funding shall be made in 
accordance with Rule .1 123 of this 
Section (Area Mental Health Center 
Construction Project); 

(C) a request for renovation, alteration, 
improvement, or rehabilitation of a 
facility of five thousand dollars 
($5,000) or more shall be forwarded 
to the Division Director's Office for 
approval . Each request shall be 
accompanied by a narrative that 



explains the need for and description 
of the alteration, improvement or 
repair of the facility. Lesser amounts 
do not require Division approval; and 
(D) if a facility owned by an area 
program or its non-profit contract 
agency was purchased, altered, 
improved, or rehabilitated using 
Thomas S^ Services funds of five 
thousand dollars ($5,000) or more 
ceases to be used by the area program 
or its non-profit contract provider for 
services to Thomas S^ clients for 45 
consecutive days, the Division shall 
be contacted immediately for 
disposition instructions. If the 

Division so directs, the facility shall 
be sold at the current fair market 
value in accordance with G.S. 
153A-176 and 160A-266. After the 
sale, the Division shall be reimbursed 
the Division's rjro rata share of the 
proceeds from the sale based on the 
percent of contribution made by the 
Division for the purchase, alteration, 
improvement or rehabilitation of the 
sold facility. If an area program or 
its non-profit contract provider wishes 
to maintain ownership of a facility 
that was purchased, altered, 
improved, or rehabilitated using 
Thomas S^ Service Funds, the area 
program or non-profit contract 
provider may, if authorized by the 
Division, pay to the Division the 
Division's pro rata share of the 
current fair market value of the 
facility as determined by two certified 
appraisers or two independent 
appraisals acceptable to the Division. 
The contribution made by all parties 
shall be maintained individually on a 
perpetual basis in the ledger, or group 
of accounts in which the details 
relating to the general fixed assets of 
the area program or its non-profit 
contract agency are maintained; and 
(11) except as provided in Paragraph (a) of 
this Rule, Thomas S^ operating funds 
shall not be used to serve other than 
Thomas S_, clients without specific 
Division approval . 
(c) Funds provided by the Division for Thomas 
S^ Services shall not be used to purchase client's 
personal possessions or clothing unless: 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



15 



PROPOSED RULES 



01 



a unique 
documented; 



situation has been 



this expenditure cannot be covered from 
another source; or 

specific prior approval has been granted 
by the Division. 

(d) Start-up funds, defined as funding provided 
to establish or prepare a facility or program for the 
provision of services, are required to be settled on 
an expenditure basis and may be provided to an 
area program or contract provider in accordance 
with the following provisions: 

(1) Expenditures for start-up may be 
approved in accordance with Paragraph 
(b) of this Rule with the following 
restrictions: 

(A) vehicles are allowable expenditures if 
sufficiently justified, and if at least 
four Thomas S_. clients will receive 
transportation services from the 
vehicle; or if sufficient justification 
for fewer than four clients is 
submitted and approved by the 
Division; and 

(B) furnishings for residential and day 
services shall be limited to functional 
items and shall not include stereos, 
video cassette recorders, microwaves, 
or similar items unless specifically 
justified and approved by the 
Division; 

(2) Requests for start-up funds shall be 
made by the area program, or through 
the area program in the case of a 
contract provider, in whose catchment 
area the new program or program 
component is being established and is 
not required to be client specific; 

(3) Requests for start-up funding shall be 
made in writing to the Division 
Director at least 90 days prior to need 
and shall include a line item budget and 
written justification; and 

(4) Requests for start-up funding may 
include expenses for normal operations 
such as staff, utilities, and rent but js 
limited and may not exceed 60 days. 

(e) Funds provided by the Division to support 
Thomas Jv. Services, except as noted in Paragraph 
(d) of this Rule, shal l be discontinued if the 
program fails to serve any Thomas 5v clients for a 
period of 45 consecutive days, unless an extension 
of time is approved in writing by the Division 
Director. 

(f) Funds shall be awarded to the area program 



by the Division in a method established by the 
Division. The annual budget for the programs 
serving Thomas S^ clients shall be budgeted in a 
separate cost center. Such cost centers shall 
include all sources of revenue which support the 
costs of Thomas 5v clients. 

(g) Thomas S^ Class members, as defined in 
Subparagraphs (a)(1) and (2) of thjs Rule, shall not 
be excluded from participating in programs or 
services for which they are eligible, and which are 
funded from other sources. 

(h) The area program and contract provider shall 
provide financial and client data regarding Thomas 
Jv, Services to the Division according to 
instructions from the Division. 

Statutory Authority G. S. 122C-147. 

CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18F - PROGRAM SUPPORT 
STANDARDS 

SECTION .0300 - SUBSTANCE ABUSE 
ASSESSMENTS FOR INDIVIDUALS 

CHARGED WITH OR CONVICTED OF 
DRIVING WHILE IMPAIRED (DWI) 

.0312 PURPOSE AND SCOPE 

The purpo s e of th e rul e s of this Section is to 
e stablish sp e cific proc e dure s for conducting and 
reporting DWI substanc e abus e ass e ssments. — Such 
ass e ssm e nts may b e sought e ith e r voluntarily on a 
pr e trial basis or by order of the pr e siding judg e . 
Th e se rul es apply to any facility lic e nsed by th e 
Stat e — as — aft — alcoholi s m — &f*d — substanc e — abu se 
treatm e nt — facility — or a facility — which — provides 
substanc e abuse s e rvic e s and is exclud e d from 
lic e nsur e und e r G.S. — 122C 22 which wi s h es to 
perform DWI sub s tanc e abus e ass e ssm e nts. 

(a) The purpose of the rules of this Section is to 
establish specific procedures for conducting and 
reporting DWI substance abuse assessments. 
Alcohol and Drug Education Traffic Schools 
(ADETS), and treatment of DWI offenders. 

(b) Assessments may be sought either 



voluntarily on a pre-trial basis or by order of the 
presiding judge. 

(c) These Rules apply to any facility that wishes 
to perform DWI assessments. 

(d) In order for a facility to perform DWI 



assessments, it shall: 



(1) be licensed by 
alcoholism and 



the State 
substance 



as an 

abuse 



16 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



£2} 



13} 



Outpatient Treatment, has been divided 
into I.A., Short-term and I.B., 
Longer-term Outpatient Treatment. 
"Certified ADETS Instructor" means an 
individual who is certified by the 
Division in accordance with 10 NCAC 
18M .0906 Instructor Certification, 



contained m Division publication. 
Standards for Area Programs and Their 
Contract Agencies, APSM 35-1, and 



14) 



available at the current printing cost. 
(3) "Clinical Interview" means the 
face-to-face interview with a substance 
abuse professional intended to gather 
information on the client, including, but 



ID 



treatment facility; or 
(2) provide substance abuse services, and 
be excluded from licensure under G.S. 
122C-22. 

Statutory Authority G.S. 20-1 79(e)(6) and (m). 

.0313 DEFINITIONS 15} 

For the purpose of the rules in this Section, the 
following terms shall have the meanings indicated: 

(1) "Alcohol and Drug Education Traffic 
School (ADETS)" means a prevention 
and intervention s e rvic e which provid e s 
an educational program primarily for first 
offend e rs — convicted — ef- — driving — whil e 
impair e d. — This service is d e sign e d to 
reduce the recidivism rat e for the off e ns e 
of driving whil e impair e d, an approved 
curriculum which shall: 

(a) include K) to J_3 contact hours in a 
classroom setting ; 

(b) be provided by area programs or their 
designated agencies with certified 
ADETS instructors; and 

(c) be designed for persons: 
(i) who have only one DWI conviction 

(lifetime); 
(ii) whose assessment did not identify a 

"Substance Abuse Handicap"; and 
(iii) whose alcohol concentration was . 14 
or less. 
"American Society of Addiction Medicine (6) 

(ASAM) Placement Criteria" means the 
Patient Placement Criteria for the 
Treatment of Psychoactive Substance 
Abuse Disorders, copyright 1991 by the 
National Association of Addiction 
Treatment Providers and the American 
Society of Addiction Medicine. Fo r 
these Rules, the ASAM Level I 



ii) 



lii) 



£b) 



Iiil 



not limited to the following: 
demographics, medical history, past and 
present driving offense record, alcohol 
concentration of current offense, social 
and family history, substance abuse 
history, vocational background and 
mental status. 

"Continuing Care" means an outpatient 

service designed to maximize the 

recovery experience begun in more 

intensive treatment; outpatient or 

inpatient. As a continuation of the 

treatment experience this service is 

expected to begin immediately upon the 

client's discharge from intensive 

treatment: 

When the continuing care follows an 

inpatient treatment experience, it shall: 

include a minimum of 20 contact 

hours of service scheduled no less 

than weekly, during a 30-day period; 

and 

continue for a minimum period of 90 
days. 
The services shall be provided 
according to a written continuing care 
plan which shall: 
address the needs of the client; and 
utilize individual, family and group 
counseling as required to meet the 
needs of the client. 
"Day treatment" means a structured, 
outpatient service. It may also be called 



For 17] 



18) 



and 19] 



(10) 



intensive outpatient treatment, as defined 
in K) NCAC 14N .0900 and applicable 
portions of K) NCAC 14K .0300, which 
include ASAM Level II treatment 
criteria. 

"Division" means the same as defined in 
G.S. 122C-3; and is hereafter referred to 
as DMH/DD/SAS. 

@) "DMH Form 508 (DWI Services 
Certificate of Completion)" means the 
four-part form which is used in 
documenting the offenders completion of 
the DWI substance abuse assessment and 
treatment or ADETS and compliance or 

non complianc e ef- ADETS as 

appropriat e. 

"Driving record" means a person's 
complete North Carolina driving history, 
as maintained by the North Carolina 
Driver's License Division's history file. 
"DSM" means the current edition of the 
Diagnostic and Statistical Manual of 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



17 



PROPOSED RULES 



an 

(12) 



02) 

(14) 



(15) 



(16) 



£17} 



id] 



Mental Disorders of the American 
Psychiatric Association. 
{4) "DWI" means impaired driving as 
described in G.S. 20-138.1. 
(5) "DWI Substance Abuse Assessment" 
means a service provided to persons 
charged with or convicted of DWI to 
determine the presence or absence of a 
substance abuse handicap. The 

assessment involves a clinical interview 
as well as the use of a standardized test. 
{&) "Facility" means the term as defined 
in G.S. 122C-3(14). 

"Inpatient residential treatment services" 
means an array of services which may 
include detoxification and rehabilitation 
in a structured environment, as set forth 
in K) NCAC 14Q .0300, and contained 
in Licensure Rules as defined in Item 
( 14) of this Rule. Such services will 
correspond with ASAM Level III and 
Level IV treatment criteria. 
"Licensure rules" mean the rules 
contained in 10 NCAC 14K through 14Q 
of the North Carolina Administrative 
Code 



and 



publication. 



published in 
Licensure Rules 



Division 



for 



MH/DD/SA Facilities, APSM 40-2. 
"Longer-term outpatient treatment' 



means a structured program meeting the 
ASAM definition of Level L. Outpatient 
Treatment, and requiring a minimum of 
40 contact hours scheduled to maintain 
the client in active treatment for a 
minimum period of 60 days, providing 
counseling and learning experiences 
which include the "Minimal Subject 
Content," as defined in Item (16) of this 



Rule. The facility must operate in 
compliance with Licensure Rules, 10 
NCAC 14N .0700 and applicable 
portions of 10 NCAC 14K .0300. 
"Minimal subject content" means the 
following list of subjects which shall be 
addressed in the educational portion of 
any treatment program serving DWI 
offenders: 



Effects of Alcohol and Drugs on the 

Body/Brain; 

The Nature of Denial; 

Disease Concept of Chemical 

Dependency; 

Progression of Disease and Recovery 

(Jellinek Chart); 

Chemical Dependency and the Family; 



(f) Introduction to Self-Help Groups/ 12 
Step Recovery Programs; 

(g) Relapse Prevention and Strategies for 
Recovery; and 

(h) Safe Roads Act Penalties. 

(18) "Short-term outpatient treatment" means 
a structured program meeting the broad 
definition of "ASAM Level L. Outpatient 
Treatment," and requiring a minimum of 
20 contact hours over a period of at least 
30 days, including counseling and 
didactic experiences which include the 
minimal subject content. Facilities which 
are approved to provide this shall operate 
in compliance with Licensure Rules 
contained in f0 NCAC 14N .0700 and 
applicable portions of K) NCAC 14K 
.0300. 

(19) "Special services plan" means a plan for 
persons who exhibit unusual 
circumstances, such as severe hearing 
impairment, other physical disabilities, 
concurrent psychiatric illness, language 
and communication problems, intractable 
problems of distance, transportation and 
scheduling, and chronic offenders with 
multiple unsuccessful treatment 
experiences. 

(20) {74 "Standardized Test" means an 
instrument a writt e n test approved by the 
Department of Human Resources, with 
documented reliability and validity, 
which serves to assist the assessment 
agency or individual in determining if the 
client has a substance abuse handicap. A 
current listing of the approved 
standardized tests may be obtained by 
writing the DWI/Criminal Justice Branch, 
Division of M e ntal — H e alth, — M e ntal 

R e tardation and Substanc e Abus e 

S e rvices MH/DD/SAS, 325 N. Salisbury 
Street, Raleigh, NC 2-7444- 27603 . 

(21) {&) "Substance Abuse Handicap" means 
a degree of dysfunction directly related to 
the recurring use/abuse of an impairing 
substance. 



Statutory Authority 
122C-3. 



G.S. 20-138.1; 20-179; 



.0314 WRITTEN NOTICE OF EXTENT 

A facility i not operated by or contracted with an 
area authority, wishing to provide DWI substance 
abuse assessments shall send a written notice of 
intent to both the area authority in that particular 



18 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



catchment area and the Department of Human 
Resources at the following address: DWI/Criminal 
Justice Branch, DMH/DD/SAS Mental Health, 
Mental Retardation and Substanoo Abus e S e rvic e s , 
325 N. Salisbury Street, Raleigh, NC 27611 
27603 . The notice of intent shall be documented 
on agency letterhead and shall include at a 
minimum the following: 

(1) declaration of intent to provide DWI 
substance abuse assessments in 
accordance with State laws ; 

(2) statement of willingn e ss agreement to 
follow rules for conducting such 
assessments as adopted by the 
Department of Human Resources; 

(3) a copy of the license number issued by 
the Division of Facility Services, or by 
licensing boards as referenced in 
122C-22; and 

(4) signature of the administrator in charger 
1 and 

(5) identification of a contact person to 
accept referrals and respond to inquiries. 

Statutory Authority G.S. 20-1 79(m); 122C-22. 

.0315 DWI SUBSTANCE ABUSE 
ASSESSMENT ELEMENTS 

(a) DWI substance abuse assessments shall only 
be provided by a facility licensed by the State as 
an alcoholism and substance abuse treatment 
facility as specified in 10 NCAC 14K .0365 or a 
facility which provides substance abuse services 
and is excluded from licensure under G.S. 
122C-22. 

(b) A clinical interview shall be conducted with 
the individual to collect information regarding his 
the use of alcohol and other drugs. 

(c) In addition to the clinical interview, the 
agency or individual performing the assessment 
shall administer^ to the individual^ a standardized 
test and consider the driving record, as defined in 
Rule .0313 of this Section, and any alcohol 
concentration readin g available in determining 
whether or not a substance abuse handicap exists . 

(d) The agency or individual performing the 
assessment shall have the individual execute the 
appropriate release of information form per 42 
CFR, Part 2 giving the assessing agency 
permission to communicate with and report its 
findings to the DMH/DD/SAS Mental Retardation 
and Substanoo Abuse Servioes , the area authority, 
the Division of Motor Vehicles, the Court, the 
Department of Correction^ and the agency 
providing the recommended treatment and 



education. 

Statutory Authority G.S. 20-179(m); 122C-22. 

.0316 QUALIFICATIONS OF INDIVIDUALS 
PERFORMING ASSESSMENTS 

Staff m e mb e rs of ag e nci e s — or individuals in 
privat e — practic e Individuals performing DWI 
substance abuse assessments shall have at least one 
of the following qualifications: 

(1) certification as a certified alcoholism, 
drug abuse or substance abuse counselor 
by the North Carolina Substance Abuse 
Professional Certification Board; 

(2) graduation from high school or equivalent 
and three years of supervised experience 
in the profession of alcohol and drug 
abuse counseling, graduation from a 
four-year college or university and two 
years of supervised experience in the 
profession of alcohol and drug abuse 
counseling, or graduation from a masters 
degree level program and one year of 
supervised experience in the profession of 
alcohol and drug abuse counseling; or 

(3) licensure by the Board of Medical 
Examiners of the State of North Carolina 
or the North Carolina State Board of 
Examiners — ef- — Practicing — Psychologists 
Psychology Board . 

Statutory Authority G.S. 20-1 79(m). 

.0317 RESPONSIBILITIES OF ASSESSING 
AGENCY 

(a) Following the completion of the assessment, 
the agency or individual performing the assessment 
shall inform the individual if treatment or ADETS r 
e ducation or both is recommended. 

(b) If treatment-; — education — ef — beth is 
recommended^ the individual shall be made awar e 
informed of the available treatment and education 
facilities, both private and public, which provide 
the type level of recommended treatment ef 
e ducation recommended . 

(c) Any facility accepting a transferred case 
shall provide, at least, the level of intervention 
recommended by the assessor, unless there is a 
subsequent negotiated agreement between the 
assessor and the service provider. In addition, th e 
agency or individual performing the assessm e nt 
shall — inform — the — individual — ef- — the — possibl e 
cons e quences — ef- — failing — te — comply — with 
r e comm e nd e d treatment, or e ducation. 

(d) Private facilities shall refer all individuals 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



19 



PROPOSED RULES 



recommended for ADETS to the area authority, or 
its designated agency. A DMH 508 Form shall 
accompany the referral . 

(e) The agency or individual performing the 
assessment shall inform the client of the possible 
consequences of failing to comply with 
recommended treatment or ADETS. 

Statutory Authority G.S. 20-1 79(m). 



. 03 1 8 RESPONSIBILITIES OF TREATMENT 
OR ADETS PROVIDERS 

(a) Clients shall be provided with documentation 
that outlines their obligation, resulting from the 
assessment recommendations. A written plan shall 
be — d e velop e d — by — the — facility — providing — the 
r e commended treatm e nt or ADETS to insur e that 
the individual understands th e r e quirem e nts of the 
particular treatment or e ducation s e rvic e in which 
they ar e enroll e d. 

(b) Individual — shah — net — be — d e ni e d — the 
opportunity to complete the servic e r e comm e nd e d 
by — the — assessing — ag e ncy. "Individuals not is r e commended, all four pages of the DMH Form 



.0319 REPORTING REQUIREMENTS 

(a) The assessment portion of the DMH Form 
508 shall be completed on each client who receives 
a DWI substance abuse assessment. An initial 
supply of this form may be obtained from the 
DWl/Criminal Justice Branch of the Division of 

DMH/DD/SAS Mental Health, M e ntal 

Retardation, and Substanc e Abus e Services , 325 
N. Salisbury Street, Raleigh, N.C. 37644 27603 . 

(b) The assessment portion of DMH Form 508 
shall be signed by a certified alcoholism, drug 
abuse or substance abuse counselor. The date of 
expiration of that professional's certification shall 
be indicated on the client's Certificate of 
Completion and no assessment shall be signed after 
the expiration date . 

(c) The facility providing the recommended 
treatment or education shall have the client sign 
the appropriate release of information, and 
progress reports shall be filed with the court or the 
Department of Correction at intervals not to 
exceed six months. If treatm e nt, e ducation or both 



beginning services within nine months of the date 
of the initial assessment shall be re-evaluated 
utilizing the results of the initial assessment. 

(c) The facility providing the recommended 
treatment or ADETS shall have the individual 
execute the appropriate release of information 
giving that facility permission to report the client's 

progress to the^ Division of M e ntal — H e alth, 

M e ntal Retardation, and Substanc e Abus e 

Service s , — th e Divi s ion of Motor V e hicl e s, — the 
Court and the D e partm e nt of Corr e ction. 



LU 

ill 
(4) 
151 



DMH/DD/SAS; 

Division of Motor Vehicles; 
Court; 



as 



Department of Correction; and 
assessing and treatment agencies 
appropriate. 

(d) Identification of a substance abuse handicap 
shall be considered indicative of the need for 
treatment^ when diagnostic criteria apply . In such 
instances, educationally-oriented and/ or support 
group services shall only be provided as a 
supplement to a more extensive treatment plan. 

(e) If treatment is recommended and required 
per the court's judgement, such treatment shall be 
provided by a facility licensed by the state State 
for the provision of such services. In addition, a 
client record shall be opened on each client 
receiving treatment. 



Statutory Authority 
143B-147. 



G.S. 20-179{m); 122C-26; 



50 8 shall b e forward e d to th e facility providing th e 
r e comm e nd e d treatm e nt or e ducation. 

fd) — — Ifl — the — e v e nt — that — ne — substanc e — abuse 
handicap — is — id e ntifi e d — and — Be — treatm e nt — er- 

education — r e comm e ndations — afe — mad e . the 

ass e ssing ag e ncy shall forward the copi e s of DMH 
Form 50 8 as specifi e d in part (g) of this Rule. 

(d) Upon completion of the recommended 
treatment or ADETS service, the agency shall: 

(1) forward the top page of the completed 
DMH Form 508 to the DWI/Criminal 
Justice Branch, DMH/DD/SAS; and 

(2) retain, for a period of at least five 
years, the appropriate page of the form, 
and distribute the remaining pages to 
the offender and the court as specified 
on the bottom of the form. 

{ej The — facility providing th e r e comm e nded 

treatm e nt or e ducation shall hav e th e cli e nt sign 
the — appropriat e — releas e — ef- — information. — and 
progr e ss r e ports shall b e fil e d with the court or th e 
Departm e nt — of Corr e ction — at — int e rvals — net — te 
exc ee d six months. 

(e) In the event that an assessment or treatment 
agency ceases to provide DWI-related services, the 
agency shall notify, in writing, the DWI Criminal 
Justice Branch to assure that all DMH Form 508s 
and other related documents specified in G.S. 
20-179(m) are properly processed. 

f£) — If tr e atm e nt and ADETS hav e been court 
ord e r e d, and th e individual do e s not succ e ssfully 
compl e t e the r e quir e m e nts of th e ADETS, a copy 



20 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



of the top sheet of DMH Form 50 8 showing 
non oomplianee — shaH — be — forward e d — te — the 
DWI/Criminal Juotioo Branch, Division of M e ntal 
Health, Mental Retardation, and Substanc e Abus e 
Sorvioos. — All four pages of the DMH Form 50 8 
shall be retain e d by the faoility providing th e 
recommended treatment servioo until such servic e 
are oomploted, 

(f) By February 15 of calendar each year, all 
assessing agencies shall forward, in writing, to the 
DWI/Criminal Justice Branch of the Division the 
following information on the previous year's 
activities, which shall include but need not be 
limited to the number of: 

(1) pre-trial assessments conducted; 

(2) post trial assessments conducted; 

(3) persons referred to ADETS; and 

(4) substance abuse handicaps identified 
and the recommended levels of 
treatment. 

{g) Upon — completion — of the recomm e nd e d 

treatment or e ducation s e rvioo, th e top pag e of th e 
oomploted DMH Form 50 8 shall bo forwarded to 
the DWI/Criminal Justic e Branoh, the Division of 
Mental Health, Mental R e tardation , and Substanc e 
Abuse S e rvices. — The agency shall al s o r e tain th e 
appropriate pag e of the form and distribut e th e 
remaining pages to the offend e r and th e court as 
sp e cifi e d on th e bottom of the form. — The ag e ncy 
providing the s e rvio e (s) shall retain its copy of this 
form for a period of not less than fiv e years. 

(h) In the ev e nt that an assessment or treatment 
agency ceases providing DWI relat e d se rvic e s, it 
shall be the r e sponsibility of that ag e ncy to notify 
the DWI Criminal Justic e Branoh in writing to 
assur e that all DMH Form 508 forms and oth e r 
r e lat e d documents sp e cifi e d in G.S. 20 179(m) ar e 
prop e rly process e d. 

Statutory Authority G.S. 20-1 79(m). 

.0320 PRE-TRIAL ASSESSMENTS 

(a) A DMH Form 508 shall be completed on 
each individual who voluntarily refers himself or 
herself for a DWI assessment, under the provisions 
of G.S. 20- 179(e) (6). However, the DMH Form 
508 shall not be used to report the results of the 
pre-trial assessment to the court or attorney. The 
results shall be summarized in a concise, easy to 
interpret fashion on agency letterhead and signed 
by the individual who performed the assessment. 
Th e DMH Form 50 8 shall b e retained by th e 
assessor and compl e t e d as specifi e d in (b) and (c) 
of this Rule. 

(b) Tho assessor shall make the individual aware 



that it is th e individual's responsibility to notify th e 
ag e noy or individual that performed the ass e ssm e nt 
of th e outoom e of hi s /h e r trial so that th e DWI 
Form 50 8 can b e forward e d to the appropriate 
party. 

(e) — In th e e v e nt that th e individual is found not 
guilty of DWI or the individual fails to notify the 
ag e noy or individual that p e rform e d th e ass e ssm e nt 
within 12 months of the assessment, the assessing 
agency shall forward the DMH Form 508 to the 
Division of M e ntal Health, Mental Retardation, 
and — Substanc e — Abuse — Services' — DWI/Criminal 
Justic e Branoh Chi e f at th e addr ess s p e cified in 
Rul e .0315 of this S e ction. 

Statutory Authority G.S. 20-1 79(e)(6) and (m). 

.0321 PLACEMENT CRITERIA FOR 
ASSESSED DWI CLIENTS 

(a) Clients who have undergone a DWI 
substance abuse assessment shall be placed in the 
appropriate category as determined by its 
definition in Rule .0313 of this Section. 

(b) Placement of clients in a specific category 
shall be based on the assessment outcome, 
diagnosis, and level of care determined to be 
necessary for treatment. 

(c) In addition to the terms defined in Rule 
.0313 (1), (6), (13), (15), (17), and (18) of this 
Section for each of the following progressive 
categories, determination for placement shall be 
based on the criteria specified in this Paragraph . 

Hi ADETS: 

(A) the assessment did not identify a 
"Substance Abuse Handicap"; and 

(B) the person has no previous DWI 
conviction; and 

(C) the person had an alcohol 
concentration of 0.14% or less at the 
time of arrest. 

(2) Short-term Outpatient Treatment: 

(A) the assessment outcome suggests 
diagnosis of psychoactive substance 
abuse only; 

(B) the client does not fit all aspects of 
the diagnosis, but, under certain 
circumstances, the clinical picture 
provides reason to conclude that a 
treatment setting would be more 
appropriate than ADETS. Some of 
these circumstances include, but are 
not limited to: 

{i} alcohol concentration is A5 or 

higher; 
(ii) refusal of breath test at time of 



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21 



PROPOSED RULES 



arrest; 
(iii) problems relating to family 

history; 
(iv) other problems which seem to be 

a contributing factor to DWI 

behavior; such as grief, loss, etc.; 

and 
(v) the client meets the criteria for 

Level I of the ASAM Placement 

Criteria; 



(C) the person had an alcohol 
concentration of 0, 14% or less at the 
time of arrest. 



(3) Longer-term Outpatient Treatment: 
(A) when a client meets minimal 
conditions for the diagnosis of 
"psychoactive substance dependence"; 
and 

the criteria for Level I of the ASAM 
placement is met. 
Day Treatment: 



M) 



IB) 

I 
(A) 

ill 



the assessment confirms a diagnosis of 
psychoactive substance dependence, 
moderate or severe; 
the ASAM placement criteria for 
Level II Outpatient Treatment is met; 
program: 

(i) include s an educational component 
which addresses at least the 
minimal subject content, as 
defined in Rule .0313(16) of this 
Section; 
(ii) offers additional continuing care, 
urging voluntary participation of 
the client and significant others; 
and 
(iii) requires a minimum of 90 contact 
hours and participation of the 
client over a period of at least 90 
days, for clients referred under 
G.S. 20-179(m) or (e)(6); 
(D) program may be preceded by a brief 
inpatient stay for detoxification or 
stabilization of a medical or 
psychiatric condition. 
(5) Inpatient Residential Treatment 
Services: 

(A) the level of care requires that the 
client meets the same diagnostic 
criteria as Intensive Outpatient 
(dependence is moderate or severe); 

(B) outpatient treatment of other 
associated problems has not been 
successful; 

(C) the client meets the placement criteria 



for Levels III or IV (Inpatient) of the 
ASAM Placement Criteria with regard 
to the following six "patient problems 
areas" as set forth in ASAM Patient 
Placement Criteria, Adult Crosswalk; 
and the client exhibits : 

iii 

(ill 

lim 



withdrawal risk; 

need for medical monitoring; 

emotional and behavioral 



problems requiring a structured 
setting; 
(iv) high resistance to treatment; 
(v) inability to abstain; and 
(vi) lives in a negative and destructive 
environment; 
(D) in order for the client to meet the 
required 90 -day time frame for 
treatment, the client, upon d ischarge. 
shall enroll in an approved continuing 
care or other outpatient program. 
(6) Special Service Plan: 

(A) documented need for a special 
program to correspond with the 
recommendations of the DWI 
assessment, which shall include 
documentation: 

(i) of the special circumstances which 
prove that the client is unable to 
participate in or benefit from the 
recommended basic structured 
program; and 

(ii) that the participation would be 
detrimental to the client. 

(B) some of the conditions under which 
Special plans are implemented may 
include, but need not be limited to, 
the following: 

(i) severe hearing impairment; 
(ii) other physical disabilities; 
(iii) concurrent psychiatric illness; 
(iv) language and communication 

problems; 
(v) intractable problems of distance, 

transportation and scheduling; and 
(vi) chronic offenders with multiple 

unsuccessful treatment 

experiences. 

Statutory Authority G.S. 20-1 79(e)(6) and (m). 

,0322 CLIENT RECORD REQUIREMENTS 
FOR DWI ASSESSMENT/ 
TREATMENT 

(a) When conducting an assessment to determine 
appropriate treatment for individuals charged with. 



22 



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PROPOSED RULES 



or convicted of, offenses related to Driving While 
Impaired (DWI), client record documentation shall 
meet or exceed the following minimum 
requirements for each category of service. DWI 
assessments, as defined in Rule .0313 of this 
Section shall include, but need not be limited to, 
the requirements set forth in: 

10 NCAC 14K .0317 CLIENT 



ID 



121 



ID 



RECORDS and contained in Division 
publication, "licensure rules," as 
defined in Rule .0313 of this Section; 
all items specified in the "clinical 
interview, " as defined in Rule .0313 of 
this Section; 



results of the administration of an 
approved "standardized test," as defined 
in Rule .0313 of this Section; 

(4) release of information as set forth in 
Rules .0315 and .0318 of this Section; 
and 

(5) release of information covering any 
collateral contacts, and documentation 
of the collateral information. 

(b) Substance abuse treatment records shall be 
subject to the requirements contained in Division 
publication. Licensure Rules, as defined in Rule 
.0313 of this Section, and shall: 

(1) be documented according to the 
requirements specified in JO NCAC 
14K .0317; and 

(2) contain the information and procedures 
required in JO NCAC J4K .0315 and 
.0317. 

Statutory Authority G.S. 20-1 79(e)(6) and (m). 

.0323 AUTHORIZATION TO PROVIDE DWI 
SUBSTANCE ABUSE ASSESSMENTS 

Any facility that provides DWI assessments shall 
comply with JO NCAC 14K .0365 DWI 
SUBSTANCE ABUSE ASSESSMENTS, contained 
in Division publication. Licensure Rules, as 
defined in Rule .0313 of this Section. 



Statutory Authority G.S. 20- 179(e) (6) and (m). 

SUBCHAPTER 18J - AREA PROGRAM 
MANAGEMENT STANDARDS 

SECTION .0100 - AREA BOARD 
ORGANIZATION/RESPONSIBILITIES 

.0119 APPEALS PROCEDURES FOR 
CONTRACT PROVIDERS 

(a) Pursuant to G.S. 122C-151.3, an area 



authority shall establish written procedures for the 
resolution of disputes regarding decisions of an 
area authority with the following as specified in 
G.S. 122C-151.4(c): 

(1) a contractor or a former contractor; or 

(2) a client or a person. 

(b) Decisions may be appealed to the Area 



Authority Appeals Panel as set forth in Section 
.0800 of this Subchapter. 

Statutory Authority G.S. 122C-1 12(a); 
122C-15L4. 

SECTION .0800 - ESTABLISHMENT OF 
AN AREA AUTHORITY APPEALS PANEL 

.0801 PURPOSE, SCOPE AND 
DEFINITIONS 

(a) The purpose of the rules in this Section Js to 
specify the procedures for appeals to the area 
authority as set forth in G.S. 122C-151.4. 

(b) These Rules apply to any client, contractor, 
former contractor, or person as defined in G.S. 
122C-151.4. 

(c) The terms used in this Section shall have the 
same meanings as provided in G.S. 122C-151.4. 

Statutory Authority G.S. 122C-1 12(a); 
122C-151.4. 

.0802 AREA AUTHORITY APPEALS PANEL 

la} Pursuant to G.S. 122C-151 .4(b), the Area 
Authority Appeals Panel, hereafter referred to as 
"the Panel," shall consists of three members. 

(b) Under authority delegated by the Secretary, 
the members shall: 

(1) be appointed by the Division Director 
and serve at the pleasure of the 
Secretary; and 

(2) have education and experience relevant 
to the appeals process, as determined 
by the Division Director. 

(c) The Division Director shall appoint the Chair 
of the Panel. 

£d} Clerical support for the Panel shall be 
provided by the Division. 

Statutory Authority G.S. 122C-1 12(a): 
122C-151.4. 

.0803 APPEALS PROCEDURES 

(a) A ppeals of tlie decision of local area 
authorities shall be forwarded, along with all 
supplementary documentation considered during 
the local area appeals process, to the Division 



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23 



PROPOSED RULES 



Director within 14 days of the local decision being 
rendered. 

(b) The Division Director shall forward all 
information to the Chair of the Panel within five 
working days, 

(c) The Panel shall complete an administrative 
review and notify the appealing party and the area 
program of Its decision, ]n writing, within 14 days 
of receipt of the appeal. Unless further appealed 
within 14 days of the date of this decision, this 
decision shall be considered final. 

(d) Either party named in the appeal may 
request a hearing by the Panel before the Panel's 
administrative decision is considered to be final, 
by submitting a written request to the Chair of the 
Panel, within 14 days of the date of the 
administrative review decision. 

(e) A hearing shall be scheduled by the Panel no 
more than 30 days after a written request for a 
hearing is received by the Chair. 

(f) The hearing shall be scheduled at a time and 
place designated by the Chair. 

(g) The appealing party and the area program 
shall be notified of the time and place of the 
hearing no less than 14 days pnor to the hearing. 



Statutory Authority 
122C-151.4. 



G.S. 122C-1 12(a); 



ID 



il) 



14} 



.0804 HEARING PROCEDURES 

(a) The Chair of the Panel: 

(1) will convene the meeting at the prear- 
ranged time and place; 
may afford the opportunity for rebuttal 
and summary comments to either of the 
presenting parties; 

may limit the total number of persons 
presenting for the appellant and appel- 
lee; and 

may impose time limits for presenta- 
tions. 

(b) The official representative of the appellant 
and appellee shall: 

(1) specify by name and position all indi- 
viduals who will be present for the 
hearing; 

provide the Panel with any requested 
information; and 

if appropriate, ensure that a representa- 
tive of the appellant and appellee will 
be available at the hearing to make a 
presentation. 

(c) Any member of the Panel may address 



12) 
131 



(d) All persons present at the appeal will address 
only the Chair or a specific member of the Panel 
who has addressed a specific question to that 
individual. 

(e) Direct exchanges between presenters for the 
appellant and the appellee shall be prohibited. 

(f) The Panel may obtain any form of technical 
assistance or consultation relevant to the appeal. 

Statutory Authority G.S. 122C-1 12(a); 
122C-151.4. 

.0805 PANEL DECISIONS 

(a) The Panel shall vote in open session on each 
specific item being appealed. 

(b) Within five working days, each decision 
shall be conveyed in writing to the appealing party 
and the area authority. 

(c) Any decision may be rescheduled for a 



questions to the representatives of the appellant or 
of the ap pellee. 



subsequent meeting if the Panel determines that it 
lacks sufficient information to render a decision at 
the initial hearing. 

(d) In all cases a final decision shall be rendered 
within 30 days of the written request for a hearing. 

Statutory Authority G.S. 122C-1 12(a); 
122C-151.4. 

-■: i< % -'■£■'$ * ^ ^ ^ ^ :•= ^ ^ -f £ -■= ^ % 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the Commission for Mental Health. 
Developmental Disabilities and Substance Abuse 
Services intends to amend rules cited as 10 NCAC 
14K.0103, .0365; 18M .0906; 45G .0104, .0406; 
and adopt rule cited as 10 NCAC 45G .0139; and 
repeal rule cited as 10 NCAC 18M .0712. 

1 he proposed effective date of this action is July 
1, 1994. 

1 he public hearing will be conducted at 1:30 
p.m. on May 10. 1994 at the Vhke County Com- 
mons Building, 4011 Carya Drive, Raleigh, N.C. 
27610. 

IVeason for Proposed Action: 

10 NCAC 14K .0103 - To provide additional 

specificity and clarity. 

10 NCAC 14K .0365 - To provide clarification of 

requirements for providing DW1 assessments. 

10 NCAC 18M .0712 - To avoid duplicative 



24 



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April 4, 1994 



PROPOSED RULES 



monitoring for required Medical Statement, al- 
ready currently required as a licensing Rule by the 
Division of Facility Services. 
10 NCAC 18M .0906 - To more specifically set 
forth requirements for instructor certification. 
10 NCAC 45G .0104 - To include definition of 
"Clinic " category. 

10 NCAC 45G .0139 - To comply with statutory 
requirement with regard to security for registrants. 
10 NCAC 45G . 0406 - To require pharmacies not 
subject to DHR registration to follow the Board of 
Pharmacy Rules with regard to disposing of 
controlled substances. 

Lsomment Procedures: Any interested person may 
present comments by oral presentation or 
submitting a written statement. Persons wishing to 
make oral presentations should contact Charlotte 
Tucker, Division of Mental Health, Developmental 
Disabilities and Substance Abuse Services, 325 N. 
Salisbury Street, Raleigh, N.C 27603, (919) 
733-4774. Comments submitted as a written 
statement must be sent to the above address no 
later than May 9, 1994, and must state the rules to 
which comments are addressed. Time limits for 
oral remarks may be imposed. Fiscal information 
regarding these Rules is available from the 
Division, upon request. 

CHAPTER 14 - MENTAL HEALTH: 
GENERAL 

SUBCHAPTER 14K - CORE LICENSURE 
RULES FOR MENTAL HEALTH: MENTAL 

RETARDATION AND OTHER 

DEVELOPMENTAL DISABILITIES: AND 

SUBSTANCE ABUSE FACILITIES 

SECTION .0100 - GENERAL 
INFORMATION 

.0103 DEFINITIONS 

(a) This Rule contains the definitions that apply 
to all the rules in this Subchapter and Subchapters 
14L through 140 of this Chapter. 

(b) In addition to the definitions contained in 
this Rule, the terms defined in G.S. 122C-3 also 
apply to all the rules in this Subchapter and 
Subchapters 14L through 140 of this Chapter. 

(c)The following terms shall have the meanings 
specified: 

(1) "Administering medication" means 
direct application of a drug to the body 
of a client by injection, inhalation, 



ingestion, or any other means. 

(2) "Adolescent" means a minor from 13 
through 1 7 years of age. 

(3) "Adult" means a person 18 years of age 
or older or a person under 18 years of 
age who has been married or who has 
been emancipated by a court of 
competent jurisdiction or is a member 
of the armed forces. 

(4) "Aftercare" means those services 
provided to substance abuse clients after 
discharge from a service which 
facilitates the client's integration or 
reintegration into society. Activities 
may include self-help groups, 
supportive work programs and staff 
follow-up contacts and interventions. 

(5) "Alcohol abuse" means psychoactive 
substance abuse which is a residual 
category for noting maladaptive patterns 
of psychoactive substance use that have 
never met the criteria for dependence 
for that particular class of substance. 
The criteria for alcohol abuse delineated 
in the 1987 edition of DSM-II1-R 
published by the American Psychiatric 
Association, 1400 K Street, N.W., 
Washington, D.C. 20005 at a cost of 
twenty-nine dollars and ninety-five 
cents ($29.95) for the soft cover edition 
and thirty-nine dollars and ninety-five 
cents ($39.95) for the hard cover 
edition, is incorporated by reference. 
This incorporation by reference does 
not include subsequent amendments and 
editions of the referenced material . 

(6) "Alcohol dependence" means 
psychoactive substance dependence 
which is a cluster of cognitive 
behavioral, and physiologic symptoms 
that indicate that a person has impaired 
control of psychoactive substance use 
and continues use of the substance 
despite adverse consequences. The 
criteria for alcohol dependence 
delineated in the 1987 edition of 
DSM-III-R published by the American 
Psychiatric Association, 1400 K Street, 
N.W., Washington, D.C. 20005 at a 
cost of twenty-nine dollars and 
ninety-five cents ($29.95) for the soft 
cover edition and thirty-nine dollars and 
ninety-five cents ($39.95) for the hard 
cover edition is incorporated by 
reference. This incorporation by 



9:1 



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April 4, 1994 



25 



PROPOSED RULES 



reference does not include subsequent 
amendments and editions of the 
referenced material. 

(7) "Applicant" means any person who 
intends to establish, maintain or operate 
a licensable facility and who applies to 
the department for a license to operate 
a facility under the provisions of G.S. 
122C, Article 2. 

(8) "Approved supported employment 
conversion plan" means a planned 
approach to changing the type of servic- 
es delivered from ADAP facility-based 
to supported employment. Approval of 
the conversion plan is the responsibility 
of the Regional Director of the Division 
and the Area Director or his designee if 
the facility is operated by a contract 
agency of the area program or other 
service provider. The Division shall 
request appropriate personnel from the 
Division of Vocational Rehabilitation to 
participate in the review process. The 
request for approval of the supported 
employment conversion plan shall 
include specific written information in 
the following areas: 

(A) number of clients to be moved into 
supported employment placements; 

(B) types of supported employment mod- 
els to be used; 

(C) time frame for the conversion period; 

(D) interim proposed facility staffing 
patterns and responsibilities; and 

(E) proposed budget for conversion plan. 

(9) "Area program" means a legally consti- 
tuted public agency providing mental 
health, mental retardation and substance 
abuse services for a catchment area 
designated by the commission. For 
purposes of these Rules, the term "area 
program" means the same as "area 
authority" as defined in G.S. 122C-3. 

(10) "Assessment" means a procedure for 
determining the nature and extent of the 
problem for which the individual is 
seeking service. 

(11) "Atypical development" in children 
means those from birth to 60 months of 
age who: 

(A) have autism; 

(B) are diagnosed hyperactive; 

(C) have an attention deficit disorder or 
other behavioral disorders; or 

(D) exhibit evidence of, or are at risk for. 



(12) 



(13) 
(14) 



(15) 



atypical patterns of behavior and 
social-emotional development in one 
or more of the following areas: 

(i) delays or abnormalities in achiev- 
ing emotional milestones; 

(ii) difficulties with: 

(I) attachment and interactions 
with parents, other adults, 
peers, materials and objects; 

(II) ability to communicate emo- 
tional needs; 

(III) motor or sensory development; 

(IV) ability to tolerate frustration 
and control behavior; or 

(V) ability to inhibit aggression; 
(iii) fearfulness, withdrawal, or other 

distress that does not respond to 

the comforting of caregivers; 
(iv) indiscriminate sociability; for 

example, excessive familiarity 

with relative strangers; 
(v) self-injurious or other aggressive 

behavior; 
(vi) substantiated evidence that raises 

concern for the child's emotional 

well-being regarding: 

(I) physical abuse; 

(II) sexual abuse; or 

(III) other environmental situations; 
as defined in G.S. 7A-517(1) and (21). 

"Certified counselor" means an alcohol- 
ism, drug abuse or substance abuse 
counselor who is certified by the North 
Carolina Substance Abuse Professional 
Certification Board. 
"Child" means a minor from birth 
through 12 years of age. 
"Chronically mentally ill adult" means 
an individual 18 years of age or older 
who, as a result of a mental disorder, 
exhibits emotional or behavioral func- 
tioning which is so impaired as to 
interfere substantially with his capacity 
to remain in the community without 
supportive treatment or services of a 
long-term or indefinite duration. In 
these persons, mental disability is se- 
vere and persistent, resulting in 
long-term limitation of their functional 
capacities for primary activities of daily 
living such as interpersonal relations, 
homemaking, self-care, employment 
and recreation. 

"Client record" means a written account 
of all services provided a client from 



26 



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NORTH CAROLINA REGISTER 



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PROPOSED RULES 



the time of admission of the client by 
the facility until discharge from the 
facility. 

(16) "Clinical" means having to do with the 
active direct treatment/habilitation of a 
client. 

(17) "Clinical staff member" means a 
professional who provides active direct 
treatment/habilitation to a client. 

(18) "Clinical/professional supervision" 
means regularly scheduled assistance by 
a qualified mental health professional, 
a qualified substance abuse professional 
or a qualified developmental disabilities 
professional to a staff member who is 
providing direct, therapeutic 
intervention to a client or clients. The 
purpose of clinical supervision is to 
ensure that each client receives 
appropriate treatment or habilitation 
which is consistent with accepted 
standards of practice and the needs of 
the client. 

(19) "Contested case" means an 
administrative proceeding under G.S. 
150B, Article 3, in which the rights, 
privileges, or duties of a party are 
required by law to be determined. 

(20) "Contract agency" means a legally 
constituted entity with which the area 
program contracts for a service 
exclusive of intermittent purchase of 
service for an individually identified 
client. 

(21) "Day/night service" means a service 
provided on a regular basis, in a 
structured environment that is offered 
to the same individual for a period of 
three or more hours within a 24-hour 
period. 

(22) "Declaratory ruling" means a formal 
and binding interpretation as to: 

(A) the validity of a rule; or 

(B) the applicability to a given state of 
facts of a statute administered by the 
Department of Human Resources, or 
a rule or order of the Department of 
Human Resources. 

(23) "Detoxification" means the physical 
withdrawal of an individual from 
alcohol or other drugs in order that the 
individual can participate in 
rehabilitation activities. 

(24) "Developmentally delayed children" 
means those whose development is 



delayed in one or more of the following 
areas: cognitive development; physical 
development, including vision and 
hearing; communication, social and 
emotional; and adaptive skills. The 
specific level of delay must be: 

(A) for children from birth to 36 months 
of age, documented by scores one and 
one-half standard deviations below the 
mean on standardized tests in at least 
one of the above areas of 
development. Or, it may be 
documented by a 20 percent delay on 
assessment instruments that yield 
scores in months; and 

(B) for children from 36 to 60 months of 
age, documented by test performance 
two standard deviations below the 
mean on standardized tests in one area 
of development or by performance 
that is one standard deviation below 
the norm in two areas of 
development. Or, it may be 
documented by a 25 percent delay in 
two areas on assessment instruments 
that yield scores in months. 

(25) "DFS" means the Division of Facility 
Services, 701 Barbour Drive, Raleigh, 
N.C. 27603. 

(26) "Direct care staff" means an individual 
who provides active direct care, 
treatment, rehabilitation or habilitation 
services to clients. 

(27) "Dispensing medication" means 
preparing and packaging a prescription 
drug or device in a container and 
labeling the container with information 
required by state and federal law. 
Filling or refilling drug containers with 
prescription drugs for subsequent use 
by a client is "dispensing." Providing 
quantities of unit dose prescription 
drugs for subsequent administration is 
"dispensing." 

(28) "DMH/DD/SAS" means the Division of 
Mental Health, Developmental 
Disabilities, and Substance Abuse 
Services, 325 N. Salisbury Street, 
Raleigh, N.C. 27603. 

(29) "Documentation" means provision of 
written, dated and authenticated 
evidence of the delivery of client 
services or compliance with statutes or 
rules, e.g., entries in the client record, 
policies and procedures, minutes of 



9:1 



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April 4, 1994 



27 



PROPOSED RULES 



meetings, memoranda, reports, 
schedules, notices and announcements. 

(30) "Drug abuse" means psychoactive 
substance abuse which is a residua] 
category for noting maladaptive patterns 
of psychoactive substance use that have 
never met the criteria for dependence 
for that particular class of substance. 
The criteria for drug abuse delineated 
in the 1987 edition of DSM-III-R 
published by the American Psychiatric 
Association, 1400 K Street, N.W., 
Washington, D.C. 20005 at a cost of 
twenty-nine dollars and ninety-five 
cents ($29.95) for the soft cover edition 
and thirty-nine dollars and ninety-five 
cents ($39.95) for the hard cover 
edition is incorporated by reference. 
This incorporation by reference does 
not include subsequent amendments and 
editions of the referenced material. 

(31) "Drug dependence" means psychoactive 
substance dependence which is a cluster 
of cognitive behavioral, and physiologic 
symptoms that indicate that a person 
has impaired control of psychoactive 
substance use and continues use of the 
substance despite adverse consequences. 
The criteria for drug dependence 
delineated in the 1987 edition of 
DSM-III-R published by the American 
Psychiatric Association, 1400 K Street, 
N.W., Washington, D.C. 20005 at a 
cost of twenty-nine dollars and 
ninety-five cents ($29.95) for the soft 
cover edition and thirty-nine dollars and 
ninety-five cents ($39.95) for the hard 
cover edition is incorporated by 
reference. This incorporation by 
reference does not include subsequent 
amendments and editions of the 
referenced material. 

(32) "DWI" means driving while impaired, 
as defined in G.S. 20-138.1. 

(33) "DWI substance abuse assessment" 
means a service provided to persons 
charged with or convicted of DWI to 
determine the presence of chemical 
dependency. The "assessment" 
involves a face-to-face interview with a 
substance abuse professional. 

(34) "Early Intervention Services" means 
those services provided for infants and 
toddlers specified in Section 303.12 of 
Subpart A of Part 303 of Title 34 of the 



Code of Federal Regulations, published 
1/1/92 and incorporated by reference. 
This adoption by reference includes 
subsequent amendments and editions of 
the referenced material. 

(A) For the purposes of these services, 
however, transportation means 
assistance in the travel to and from 
the multidisciplinary evaluation, 
specified early intervention services 
provided by certified developmental 
day centers or other center-based 
services designed specifically for 
children with or at risk for 
disabilities; and speech, physical or 
occupational therapy, or other early 
intervention services if provided in a 
specialized setting away from the 
child's residence. 

(B) Transportation assistance may be 
provided by staff, existing public or 
private services,, or by the family, 
who shall be reimbursed for their 
expenses, in accordance with 
applicable fee provisions. This 
incorporation by r e f e rence do e s not 
includ e subs e qu e nt am e ndm e nts and 
e ditions of th e r e f e r e nced mat e rial. 

(C) For the purposes of these services, 
special instruction means individually 
designed education and training in the 
strengths and needs of the child and 
family as identified i_n the 
multidisciplinary evaluation, in which 
the focus is on the major 
developmental areas and individual 
family needs. It occurs in two 
primary types of settings; home and 
mainstream ed center-based: 

(i) The mainstreamed center-based 
settings can be those designed 
primarily for children with or at 
risk for disabilities, such as 
developmental day centers or 
therapeutic preschools, if they 
allow for planned and ongoing 
contact with children without 
disabilities. 



(ii) Mainstreamed center-based 
settings also include those 
established primarily for children 
without disabilities. such as 
preschools, family day care 
homes, licensed child care centers: 
(I) when provided in these pro- 



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PROPOSED RULES 



grams, special instruction also 
includes consultation and 
training for staff on curriculum 
design, teaching and behavior 
management strategies, and 
approaches to modification of 
the environment to promote 
learning; and 
(II) service coordination activities, 
including assistance to the 
family in identifying such 
programs must be provided 
with special instruction, if 
requested by the family. 

(35) "Evaluation" means an assessment 
service which identifies the nature and 
extent of an individual's problem 
through a systematic appraisal, for the 
purposes of diagnosis and determination 
of the disability of the individual and 
the most appropriate plan, if any, for 
services. 

(36) "First aid" means emergency treatment 
for injury or sudden illness before 
regular medical care is available. First 
aid includes artificial respiration, the 
Heimlich maneuver, or other Red Cross 
first aid techniques for relieving airway 
obstruction, care of wounds and burns, 
and temporary administering of splints. 

(37) "Governing body" means, in the case of 
a corporation, the board of directors; in 
the case of an area authority, the area 
board; and in all other cases, the owner 
of the facility. 

(38) "Health Services" means those services 
provided for infants and toddlers speci- 
fied in Section 303.13 of Subpart A of 
Part 303 of Title 34 of the Code of 
Federal Regulations, published 6/22/89 
and incorporated by reference. This 
incorporation by reference does not 
include subsequent amendments and 
editions of the referenced material. 

(39) "Hearing" means, unless otherwise 
specified, a contested case hearing 
under G.S. 150B, Article 3. 

(40) "High risk children" means those from 
birth to 36 months of age for whom 
there is clinical evidence of conditions 
which have a high probability of result- 
ing in developmental delay or atypical 
development and for whom there is 
clinical evidence that developmental or 
therapeutic intervention may be neces- 



sary. There are two categories of high 
risk children. These are: 

(A) High Risk-Established: Diagnosed or 
documented physical or mental condi- 
tions which are known to result in 
developmental delay or atypical devel- 
opment as the child matures. Such 
conditions include, but need not be 
limited to are limited to the following: 

(i) chromosomal anomaly or genetic 
disorders associated with develop- 
mental deficits; 

(ii) metabolic disorders associated 
with developmental deficits; 

(iii) infectious diseases associated with 
developmental deficits; 

(iv) neurologic disorders; 

(v) congenital malformations; 

(vi) sensory disorders; or 

(vii) toxic exposure; or 

(viii) severe attachment disorders. 

(B) High Risk-Potential: Documented 
presence of indicators which are 
associated with patterns of develop- 
ment and which have a high probabili- 
ty of meeting the criteria for develop- 
mental delay or atypical development 
as the child matures. There shall be 
documentation of at least three of the 
parental or family, neonatal, or post- 
neonatal risk conditions as defined on 
page 12 in the 1990 publication, 
"NORTH CAROLINA CHILD SER- 
VICE COORDINATION 
PROGRAM" available from the 
Division of Maternal and Child 
Health, Department of Environment, 
Health and Natural Resources, P.O. 
Box 27687, Raleigh, NC 2761 1-7687 
and incorporated by reference. This 
incorporation by reference does not 
include subsequent amendments and 
editions of the referenced material. 
These conditions are as follows: 

(i) maternal age less than 15 years; 

(ii) maternal PKU; 

(iii) mother HIV positive; 

(iv) maternal use of anticonvulsant, 

antineoplastic or anticoagulant 

drugs; 
(v) parental blindness; 
(vi) parental substance abuse; 
(vii) parental mental retardation; 
(viii) parental mental illness; 
(ix) difficulty in parental or infant 



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April 4, 1994 



29 



PROPOSED RULES 



in providing basic 



sup- 



(41) 



(42) 



(43) 



bonding; 

(x) difficulty 
parenting; 

(xi) lack of stable housing; 

(xii) lack of familial and social 
port; 

(xiii) family history of childhood deaf- 
ness; 

(xiv) maternal hepatitis B; 

(xv) birth weight less than 1500 grams; 

(xvi) gestational age less than 32 
weeks; 

(xvii) respiratory distress (mechanical 
ventilator greater than six hours); 

(xviii) asphyxia; 

(xix) hypoglycemia (less than 25 
mg/dl); 

(xx) hyperbilirubinemia (greater than 
20 mg/dl); 

(xxi) intracranial hemorrhage; 

(xxii) neonatal seizures; 

(xxiii) major congenital anomalies; 

(xxiv) CNS infection or trauma; 

(xxv) congenitally acquired infection; 

(xxvi) suspected visual impairment; 

(xxvii) suspected hearing impairment; 

(xxviii) no well child care by age six 
months; 

(xxix) failure on standard developmen- 
tal or sensory screening test; 

(xxx) significant parental concern; and 

(xxxi) suspected abuse or neglect. 
"Hours of operation" means an indica- 
tion of the minimum operational hours 
that a service is expected to be avail- 
able to clients, but not prohibiting the 
typical closing of a service to accom- 
modate holidays, vacations, staff devel- 
opment activities and weather and 
facility-related conditions but taking 
into consideration the type of service 
being provided. 

"ICF/MR" (Intermediate Care Facili- 
ty/Mentally Retarded) means a facility 
certified as having met federal ICF/MR 
requirements and which provides 24- 
hour personal care, habilitation, devel- 
opmental and supportive services to 
persons with mental retardation or 
related conditions. 

"Incident" means any happening which 
is not consistent with the routine opera- 
tion of the facility or the routine care of 
a client and that is likely to lead to 
adverse effects upon a client. 



(44) "Infant" means an individual from birth 
to one year of age through two years of 
age. 

(45) "Legend drug" means a drug that can- 
not be dispensed without a prescription. 

(46) "License" means a permit to operate a 
facility which is issued by DFS under 
G.S. 122C, Article 2. 

(47) "Medication" means a substance recog- 
nized in the official "United States 
Pharmacopoeia" or "National Formu- 
lary" intended for use in the diagnosis, 
mitigation, treatment or prevention of 
disease. 

(48) "Minor client" means a person under 
1 8 years of age who has not been mar- 
ried or who has not been emancipated 
by a decree issued by a court of compe- 
tent jurisdiction or is not a member of 
the armed forces. 

(49) "Neighborhood" - See "residential 
setting". 

(50) "Nurse" means a person licensed to 
practice in the State of North Carolina 
either as a registered nurse or as a 
licensed practical nurse. 

(51) "Operator" means the designated agent 
of the governing body who is responsi- 
ble for the management of a licensable 
facility. 

(52) "Outpatient" or "Outpatient service" 
means the same as periodic service. 

(53) "Parent" means the legally responsible 
person unless otherwise clear from the 
context . 

(54) "Periodic service" means a service 
provided through short, recurring visits 
for persons who are mentally ill, devel- 
opmentally disabled or substance abus- 
ers. 

(55) "Personal assistance" means providing 
assistance to a client who is mentally 
ill, has a developmental disability or 
disabilities, or is a substance abuser, in 
order that the client can engage in 
activities and interactions from which 
the client would otherwise be limited or 
excluded because of the disability or 
disabilities. The assistance shall in- 
clude, but need not be limited to: 

(A) assistance in personal or regular 
living activities in the client's home; 

(B) support in skill development; or 

(C) support and accompaniment of the 
client in regular community activities 



30 



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April 4, 1994 



PROPOSED RULES 



or in specialized treatment, 
habilitation or rehabilitation service 
programs. 

(56) "Physical examination" means the 
procedures used by a physician or 
physician extender on behalf of a 
physician to determine the physiological 
and anatomical condition of the client. 
Physical examination also means 
medical examination. 

(57) "Physician extender" means a nurse 
practitioner or a physician assistant 
approved to perform medical acts by 
the Board of Medical Examiners of the 
State of North Carolina. 

(58) "Preschool age child" means a child 
from three through five years of age. 

(59) "Private facility" means a facility not 
operated by or under contract with an 
area program. 

(60) "Program evaluation" means the 
systematic documented assessment of 
program activity to determine the 
effectiveness, efficiency and scope of 
the system under investigation, to 
define its strengths and weaknesses and 
thereby to provide a basis for informed 
decision-making. 

(61) "Provider" means an individual, agency 
or organization that provides mental 
health, mental retardation or substance 
abuse services. 

(62) "Psychiatric nurse" means an individual 
who is licensed to practice as a 
registered nurse in the State of North 
Carolina by the North Carolina Board 
of Nursing and who is a graduate of an 
accredited master's level program in 
psychiatric mental health nursing with 
two years of experience, or has a 
master's degree in behavioral science 
with two years of supervised clinical 
experience, or has four years of 
experience in psychiatric mental health 
nursing. 

(63) "Psychiatric social worker" means an 
individual who holds a master's degree 
in social work from an accredited 
school of social work and has two years 
of clinical social work experience. 

(64) "Psychiatrist" means an individual who 
is licensed to practice medicine in the 
State of North Carolina and who has 
completed an accredited training 
program in psychiatry. 



(65) "Psychotherapy" means a form of 
treatment of mental illness or emotional 
disorders which is based primarily upon 
verbal or non-verbal communication 
with the patient. Treatment is provided 
by a trained professional for the 
purpose of removing or modifying 
existing symptoms, of attenuating or 
reversing disturbed patterns of 
behavior, and of promoting positive 
personality growth and development. 

(66) "Psychotropic medication" means 
medication with the primary function of 
treating mental illness, personality or 
behavior disorders. These medications 
include, but are not limited to, 
antipsychotics, antidepressants, 
neuroleptics, lithium and minor 
tranquilizers. 

(67) "Qualified alcoholism professional" 
means an individual who is certified by 
the North Carolina Substance Abuse 
Professional Certification Board or who 
is a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related field 
with documentation of at least two 
years of supervised experience in the 
profession of alcoholism counseling. 

(68) "Qualified developmental disabilities 
professional" means an individual 
holding at least a baccalaureate degree 
in a discipline related to developmental 
disabilities, and at least two years of 
supervised habilitative experience in 
working with the mentally retarded or 
otherwise developmentally disabled or 
holding a baccalaureate degree in a 
field other than one related to 
developmental disabilities and having 
three years of supervised experience in 
working with the mentally retarded or 
otherwise developmentally disabled. 

(69) "Qualified drug abuse professional" 
means an individual who is certified by 
the North Carolina Substance Abuse 
Professional Certification Board or who 
is a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related field 
with documentation of at least two 
years of supervised experience in the 
profession of drug abuse counseling. 

(70) "Qualified mental health professional" 
means any one of the following: 



9:1 



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April 4, 1994 



31 



PROPOSED RULES 



psychiatrist, psychiatric nurse, 
practicing psychologist, psychiatric 
social worker, an individual with at 
least a master's degree in a related 
human service field and two years of 
supervised clinical experience in mental 
health services or an individual with a 
baccalaureate degree in a related human 
service field and four years of 
supervised clinical experience in mental 
health services. 

(71) "Qualified nutritionist" means an 
individual who has a Master's degree in 
nutrition, nutrition education or public 
health nutrition and who may or may 
not be a registered dietitian. 

(72) "Qualified substance abuse 
professional" means an individual who 
is: 

(A) certified by the North Carolina 
Substance Abuse Professional 
Certification Board; or 

(B) a graduate of a college or university 
with a baccalaureate or advanced 
degree in a human service related 
field with documentation of at least 
two years of supervised experience in 
the profession of alcoholism and drug 
abuse counseling. 

(73) "Registered dietitian" means an 
individual who has successfully 
completed a national examination for 
the Commission on Dietetic 
Registration and maintains registration 
with that commission through approved 
continuing education activities and 
events. 

(74) "Rehabilitation" means training, care 
and specialized therapies undertaken to 
assist a client to reacquire or maximize 
any or ail lost skills or functional 
abilities. 

(75) "Research" means inquiry involving a 
trial or special observation made under 
conditions determined by the 
investigator to confirm or disprove a 
hypothesis, or to explicate some 
principle or effect. The term "research" 
as used in this document means 
research which is not standard or 
conventional; involves a trial or special 
observation which would place the 
subject at risk for injury (physical, 
psychological or social injury), or 
increase the chance of disclosure of 



treatment; utilizes elements or steps not 
ordinarily employed by qualified 
professionals treating similar disorders 
of this population; or is a type of 
procedure that serves the purpose of the 
research only and does not include 
treatment designed primarily to benefit 
the individual. 

(76) "Residential setting" means a living 
area or zone in which the primary 
purpose is family residential living and 
which may be located in an area zoned 
either urban residential or rural. 

(77) "Respite discharge" means that point in 
time when no additional incidents of 
respite services are anticipated. 

(78) "Respite episode" means an 
uninterrupted period of time during 
which a client receives respite services. 

(79) "Screening" means an assessment 
service which provides for a brief 
appraisal of each individual who 
presents himself for services, in order 
to determine the nature of the 
individual's problem and his need for 
services. Screening may also include 
referral to other appropriate community 
resources. 

(80) "Secretary" means the Secretary of the 
Department of Human Resources or 
designee. 

(81) "Service" means an activity or 
interaction intended to benefit another, 
with, or in behalf of, an individual who 
is in need of assistance, care, 
habilitation, intervention, rehabilitation 
or treatment. 

(82) "Severely physically disabled person" 
means for the purpose of ADAP (Adult 
Developmental Activity Program) a 
person: 

(A) who has a severe physical disability 
which seriously limits his functional 
capabilities (mobility, communication, 
self-care, self-direction, work 
tolerance or work skills); 

(B) who has one or more physical 
disabilities resulting from amputation, 
arthritis, blindness, cancer, cerebral 
palsy, cystic fibrosis, deafness, heart 
disease, hemiplegia, hemophilia, 
respiratory or pulmonary dysfunction, 
multiple sclerosis, muscular 
dystrophy, musculoskeletal disorders, 
neurological disorders (including 



32 



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NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



stroke and epilepsy), paraplegia, 
quadriplegia, and other spinal cord 
conditions, sickle cell anemia and end 
stage renal disease; and 
(C) whose habilitation or rehabilitation 
can be expected to require multiple 
habilitation or rehabilitation services 
over an extended period of time. 

(83) "Sheltered employment" means a 
facility's provision of work and work 
training by: 

(A) subcontracting from industries in the 
community and bringing work to the 
facility to be performed; or 

(B) manufacturing its own products in the 
facility. Clients served in a sheltered 
employment model are those who 
consistently achieve earning levels 
exceeding one-half of the minimum 
wage but who are not ready for 
independent employment activities. 

(84) "Staff member" means any individual 
who is employed by the facility. 

(85) "Substantially mentally retarded person" 
means for the purpose of ADAP a 
person who is mentally retarded to the 
degree of seriously limiting his 
functional capabilities, whose 
habilitation or rehabilitation can be 
expected to extend over a period of 
time, and including: 

(A) moderately mentally retarded persons; 

(B) severely mentally retarded persons; 

(C) profoundly mentally retarded persons; 
or 

(D) mentally retarded persons with a 
handicapping condition so severe as to 
lack the potential for employment at 
this time, either in a sheltered or 
competitive setting. In addition, such 
individuals must have a deficit in 
self-help, communication, 
socialization or occupational skills and 
be recommended by the vocational 



rehabilitation 
consideration of 
ADAP. 

(86) "Support services" 
provided to enhance 
progress in h 
treatment/habilitation program. 

(87) "Supported employment" means a 
day/night service which involves paid 
work in a job which would otherwise 
be done by a non-disabled worker. 



counselor for 
placement in an 



means services 

an individual's 

is primary 



Supported employment is carried out in 
an integrated work site where a small 
number of people with disabilities work 
together and where the work site is not 
immediately adjacent to another 
program serving persons with 
disabilities. It includes intensive 

involvement of staff working with the 
individuals in these integrated settings. 

(88) "Toddler" means an individual from 
one through two three years of age. 

(89) "Treatment" means the process of 
providing for the physical, emotional, 
psychological and social needs of 
clients through services. 

(90) "Treatment/habilitation plan" means a 
plan in which one or more 
professionals, privileged in accordance 
with 10 NCAC 14K .0319, working 
with the client and, in some cases, 
family members or other service 
providers, document which 
interventions will be provided and the 
goals, objectives and strategies that will 
be followed in providing services to the 
client. 

(91) "Twenty-four hour facility in which 
medical care is an integral component" 
means a facility in which: 

(A) the medication needs of clients may 
be evaluated, medication prescribed 
and laboratory tests ordered to assist 
in the diagnosis, treatment and 
monitoring of problems associated 
with the mental health, mental 
retardation or other developmental 
disabilities or substance abuse 
disorder of clients; and 

(B) proper referral of the client is made to 
medical specialists when needed. 

(92) "Twenty-four hour service" means a 
service which is provided to a client on 
a 24-hour continuous basis. 



Statutory Authority 
143B-147. 



G.S. 122C-3; 133C-26; 



SECTION .0300 - FACILITY AND 
PROGRAM MANAGEMENT 

.0365 DWI SUBSTANCE ABUSE 
ASSESSMENTS 

(a) Any facility licensed as an alcoholism and 
substance treatment facility in accordance with the 
requirements of K) NCAC 14N .0100 through 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



.?.? 



PROPOSED RULES 



,0500 and 14N .0700, may provide DWI 
assessments. 

(b) If the facility provides DWI assessments, it 
shall follow the rules set forth in W NCAC 18F 
.0312 through .0323. 

Aftv — facility — lic e nsed — as — afl — alcoholism — a»d 
substance abu se tr e atm e nt facility in accordanc e 
with the provisions of 10 NCAC 1 4 N .0100 
through .0500 and 10 NCAC 1 4 N .0700 may 
provid e DWI ass e ssm e nts. — If the facility wish e s to 
provid e DWI assessm e nts, th e assessm e nts shall b e 
carried out in accordanc e with the provisions of 10 
NCAC 18F .0312 through .0320. 



Statutory Authority G. S. 

143B-147. 



20-1 79(m); 122C-26: 



CHAPTER 18 - MENTAL HEALTH: 
OTHER PROGRAMS 

SUBCHAPTER 18M - REQUIRED 
SERVICES 

SECTION .0700 - DEVELOPMENTAL DAY 

SERVICES FOR PRESCHOOL CHILDREN 

WITH DEVELOPMENTAL DISABILITIES 

OR DELAYS OR AT HIGH RISK FOR 

MENTAL RETARDATION, 

DEVELOPMENTAL DISABILITIES OR 

DELAYS 

.0712 MEDICAL STATEMENT 

Each — s-ta# — m e mb e r. — stud e nt — int e rn — r e gular 
volunte e r. — substitute — ste# — m e mb e r — ef — oth e r 
individual who works dir e ctly and on a continuous 
ba s is with childr e n shall submit to th e program at 
the time of initial approval and annually th e r e after 
a m e dical s tat e ment from a lic e ns e d physician. 
The m e dical stat e m e nt may b e in any writt e n form 
but s hall be sign e d by the physician and indicat e 
th e g e n e ral good phy s ical and m e ntal h e alth of th e 
individual — and — the — leek — of e vidence — of active 

tub e rculo s i s — and communicabl e di se a ses . T-ke 

program shall k ee p th e most r e c e nt m e dical stat e 
m e nt on fil e . 



Statutory Authority G.S. 122C-51; 143B-147. 

SECTION .0900 - ALCOHOL AND DRUG 
EDUCATION TRAFFIC SCHOOLS (ADETS) 

.0906 INSTRUCTION CERTIFICATION 

(a) Each class shall have a designated instructor 
who is certified by the Division. 

(b) An individual seeking initial certification as 



an instructor shall: 

(1) be a high school graduate or its equiva- 
lent: 

(2) have a working knowledge of alcohol- 
other drugs, and traffic safety issues: 

(3) complete the application required by the 
Division: 

(4) submit the original and one copy to the 
DWI/Criminal Justice Branch of the 
Division. 

(5) complete an initial in-service training 
program provided by the Division, and 

(6) demonstrate skills by teaching all class- 
es. 

(c) The Division shall notify the applicant of the 
decision regarding initial certification within 60 
days after receipt of the application. 

(d) The duration of full certification shall be for 
a maximum period of two years. 

(e) An applicant who does not obtain initial 
certification may be issued a provisional certifica- 
tion, and shall be: 

(1) informed as to the specific reasons why 
full certification was denied: 

(2) provided with eligibility requirements 
necessary to reapply for full certifica- 
tion: and 

(3) informed regarding the right to appeal 
the certification decision. 

(f) Recertification: 

(1) Individuals seeking recertification shall 
submit documentation of having re- 
ceived a minimum of 48 clock hours of 
training in alcohol and drug education 
traffic subjects during the two years . 
This training shall be provided or sub- 
ject to approval by the Division. Docu- 
mentation of having received this train- 
ing shall be submitted to the 
DWI/Criminal Justice Branch at least 
30 days prior to expiration prior the 
existing certification. 

(2) An individual seeking recertification for 
each subsequent two-year cycle shall 
submit documentation of having re- 
ceived 30 clock hours of training in 
alcohol and drug education traffic sub- 
jects during the preceding two years : 

(3) The training shall be provided or ap- 
proved by the Division: and 

(4) Documentation of this training shall be 
submitted to the DWI, Criminal Justice 
Branch of the Division at least 90 days 
prior to expiration of the existing eertif- 
ication. 



34 



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April 4, 1994 



PROPOSED RULES 



(g) Revocation or suspension of certification may (4) report to the Division in a timely man- 

be issued for failure to: ner, all students who complete the 

(1) cover the required subjects outlined in prescribed course, 
the prescribed curriculum; 

(2) maintain accurate student records; Statutory Authority G.S. 20-179; 20-179.2; 

(3) comply with certification requirements; 143B-147. 

CHAPTER 45 - COMMISSION FOR MENTAL HEALTH, DEVELOPMENTAL 
DISABILITIES AND SUBSTANCE ABUSE SERVICES 

SUBCHAPTER 45G - MANUFACTURERS: DISTRIBUTORS: DISPENSERS AND 
RESEARCHERS OF CONTROLLED SUBSTANCES 

SECTION .0100 - REGISTRATION OF MANUFACTURERS: DISTRIBUTORS: AND 
DISPENSERS OF CONTROLLED SUBSTANCES 

.0104 PERSONS REQUIRED TO REGISTER 

(a) Every person who manufactures, distributes or dispenses any controlled substance or who proposes to 
engage in the manufacture, distribution or dispensing of any controlled substance in this state shall obtain 
annually a registration unless exempted by law or pursuant to Rules .0107 through .0109 of this Section. 

(b) Only persons actually engaged in such activities are required to obtain a registration; related or affiliated 
persons who are not engaged in such activities are not required to be registered. (For example, a stockholder 
or parent corporation of a corporation manufacturing controlled substances is not required to obtain a 
registration) . 

(c) When two or more practitioners dispense controlled substances from a common stock, they shall be 
deemed a clinic and required to register as specified in Paragraphs (a), (b) and (d) of this Rule. 

(d) {e) Any person applying for registration or re-registration shall file, annually, an application for 
registration with the Department of Human Resources and submit the required nonrefundable fee with the 
application. Categories of applicants and the annual fee for each category are as follows: 

CATEGORY FEE 

(1) Clinic $125.00 

(2) Hospital 300.00 

(3) Nursing Home 100.00 

(4) Teaching Institution 100.00 

(5) Researcher 125.00 

(6) Analytical Laboratory 100.00 

(7) Distributor 500.00 

(8) Manufacturer 600.00 
For any person who applies for registration at least six months or less prior to the end of the fiscal year, the 
required annual fee submitted with the application should be reduced by one-half of the above listed fee for 
each category. 

Statutory Authority G.S. 90-100; 90-101; 143B-147. 

.0139 SECURITY REQUIREMENTS GENERALLY 

Compliance with the security requirements of federal law, including the requirements presented in Part 1301 
of Title 21 of the Code of Federal Regulations, shall be deemed compliance under G.S. 90, Article 5. 

Statutory Authority G.S. 90-100; 143B-147. 

SECTION .0400 - MISCELLANEOUS 

.0406 PROCEDURE FOR DISPOSEVG OF CONTROLLED SUBSTANCES 

(a) Any person in possession of any controlled substance and desiring or required to dispose of such 
substance (e.g., upon discontinuance or transfer of business) shall be in compliance with the state State 



9:1 NORTH CAROLINA REGISTER April 4, 1994 35 



PROPOSED RULES 



requirements as long as he followo the requirements of federal law are met , including the requirements 
prescribed in Part 1307 of Title 21 of the Code of Federal Regulations, as amended. 

(b) Any pharmacy, as defined in G.S. 90-87, licensed by the North Carolina Board of Pharmacy and not 
subject to registration by the Department, as defined in G.S. 122C-3, shall be in compliance with State 
requirements set forth in 21 NCAC 46 .3001(c). 



Statutory Authority G.S. 90-100: 143B-147. 



X X X X X X 



•Jfi ■% A % ^ ^ 



x x x x 



ISotice is hereby given in accordance with G.S. 
150B-21. 2 that the Commission for Mental Health. 
Developmental Disabilities and Substance Abuse 
intends to adopt rules cited as 10 NCAC 16A 
.0401 - .0403, with changes from the proposed text 
noticed in the Register . Volume 8, Issue 19, pages 
1854 - 1856. 

1 he proposed effective date of this action is July 
1. 1994. 

Mxeason for Proposed Action: To provide public- 
notice of substantive changes made at the February 
8, 1994 public hearing regarding Single Portal of 
Entry and Exit Rules. 

KsOtnment Procedures : Written comments may be 
submitted to Charlotte Tucker, Division of Mental 
Health, Developmental Disabilities and Substance 
Abuse Services, Albemarle Building, 325 N. 
Salisbury Street, Raleigh, N.C 27603. These 
comments will be accepted from April 4, 1994 
through May 9. 1994. 

Editor's Note: An agency may not adopt a rule 
thai differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 16 - MENTAL HEALTH: 
MR CENTERS 

SUBCHAPTER 16A - GENERAL 
RULES FOR MR CENTERS 



(a) The rules in this Section apply to single 
portal of entry and exit policy for public and 
priyate services for individuals with developmental 
disabilities as set forth in G.S. 122C-132.1. 

(b) Day/night and 24-hour services for individu- 
als with developmental disabilities, provided under 
the following authorities shall be subject to the 
rules of this Section: 



lii 

12) 
ill 

141 



151 



£61 



G.S. 122C and 131D-2: 

G.S. 131E, Part A of Article 6; 

G.S. 



110, Article 7; 
Rules of the Division 



of Vocational 



(A) 

mi 

£D1 



Rehabilitation Services, when funded 
jointly by the area authority and the 
Division of Vocational Rehabilitation; 
Rules of the Department of Public 
Instruction, when funded jointly by the 
area authority and the Department of 
Public Instruction; and 
Rules of the Social Social Services 
Commission set forth in: 

10 NCAC 41J Foster Care Services 

for Children; 



10 NCAC 42A Foster Care Services 

for Adults (covers domiciliary home 

placement); 

K) NCAC 42J Health Support Servic- 

es (covers nursing home placement); 

10 NCAC 42S Day Care Services for 

Adults; and 

10 NCAC 42X Problem Pregnancy 

Services (covers maternity home 

placement), 
(c) The criteria and procedures shall be based on 
a person-centered services model, and be followed 
by: 

staff of the local area mental health 



til 
£21 



authority; and 

public and private providers of day/- 
night and 24-hour services for persons 
with mental retardation and develop- 
mental disabilities. 



SECTION .0400 - SLNGLE PORTAL OF 
ENTRY AND EXIT DESIGNATION 

.0401 SCOPE 



Statutory Authority- G.S. 143B-147. 

.0402 EXPLANATION OF TERMS 

For the purposes of the rules in this Section, the 



36 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



following terms shall have the meanings indicated: 

(1) "Client" means the term as defined in 
G.S. 122C-3. 

(2) "Community Interagency Council" means 
a group of human service professionals 
from various agencies and organizations; 
a consumer of a developmental disability 
service; and a family member of a con- 
sumer of a developmental disability 
service, who: 

(a) function under the guidance of the area 
mental health, developmental disabili- 
ties and substance abuse authority; 

(b) assist in planning for the needs of indi- 
viduals with developmental disabilities; 
and 

(c) provide general information and educa- 
tion to the community in: 

(i) screening individuals for services; 

(ii) identifying client needs; 

(iii) identifying available resources and 

alternatives; and 
(iv) determining a client's appropriateness 

for services within various agencies jn 

the community. 

(3) "Day/night and 24-hour service" means 
the term as defined in K) NCAC 14K 
.0103(c) and contained in Division publi- 
cation. Licensure Rules for Mental 
Health, Developmental Disabilities and 
Substance Abuse Facilities, APSM 40-2, 
and available, upon request, from the 
Division at the current printing cost. 

(4) "Developmental disabilities" means the 
term as defined in G.S. 122C-3. 

(5) "Emergency entry and exit" means 
screening and evaluation for placement 
which is provided on an immediate 
non-scheduled basis to individuals with 
developmental disabilities. 

(6) "Funded jointly" means funding from two 
or more sources or agencies. 

(7) "Notification procedures for provision of 
services" means notification from one 
area program to another that it plans to 
operate or contract for services in that 
area program's catchment area, as 
specified in 10 NCAC 18A .0605. 

(8) "Person-centered services model" means 
an approach to planning services for a 
client with developmental disabilities 
based on the client's needs, in order to 
help a client make choices and decisions, 
and respect those decisions. 

(9) "Review" means an organized protocol to 



assess the needs of individuals for 
day/ night and 24-hour services to ensure 
appropriate referrals. 

(10) "Single portal of entry and exit policy" 
means the term as defined in G.S. 
122C-3, amended effective January J^ 
1994. 

(11) "Waiting list" means a listing of persons 
who are in need of day/night and 24-hour 
services. 

The material referenced in this Rule includes 
subsequent amendments or editions to the 
referenced material . 

Statutory Authority G.S. 143B-147. 

.0403 DESIGNATION PROCEDURES 

(a) Each area authority shall develop a single 
portal of entry and exit plan that shall include, but 
not be limited to: 

(1) a specific listing of day/night and 
residential services to be covered by the 
plan; 

(2) procedures for: 

(A) review of individuals to be admitted 
to or discharged from services; 

(B) emergency entry and exit from 
services, which shall include, but not 
be limited to: 

ID notification to the area program 
within 24 hours of the entry or 
exit; and 



m 



l£j 



ID) 

IE] 



ii) 



exit review, as required by single 

portal mechanism. 
shared responsibility when individuals 
are admitted directly to a State 
facility; 

facility and citizen complaints; 
specific grievance process, as 
specified in: 

10 NCAC 14Q .0200, contained 

in Division publication. Client 
Community Mental 



Rights in 
Health, 



Developmental 



Iii) 



Disabilities and Substance Abuse 
Facilities, APSM 95-2; and 
G.S. 122C-151.4. Appeals to 



Area Authority Appeals Panel . 

(F) residential facilities located in an area 
mental health program serving state- 
wide and regional clients; and 

(G) placement of clients outside their 
county of residence; 

(3) provisions for: 

(A) services funded jointly by area author- 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



37 



PROPOSED RULES 



im 



£Q 



ities and local education agencies; 
services funded jointly by area author- 
ities and the Division of Vocational 
Rehabilitation; 



decision-making within the communi- 
ty interagency mechanism with details 
regarding the authority of the area 
program for input and final decision 
on the plan; 
(D) composition of the membership of the 
Community Interagency Council, 
which shall include but not be limited 
to: 
(i) a consumer of a developmental 

disability service; 
(ii) a family member of a consumer 
of a developmental disability 
service; and 
(iii) a representative from the follow- 
ing: 

(I) Department of Social Services; 

(II) Regiona l Mental Retardation 



■ 111) 
(IV) 



Center; 

Public Schools; 



Division of Vocational Reha- 



bilitation; 

Public Health Department; 

Area mh/dd/sa programs; 

(VII) Advocacy groups; and 

(VIII) Residential and Day Service 



iY) 

(VI 



ill 



ii) 



iA) 

iDj 

IE] 



providers. 

person-centered services as defined in 

Rule .0402 of this Section; 
a process for maintaining a waiting list 
which shall contain, but not be limited 
to, the following documentation for 
each potential client: 

name and identifying information; 

referral date; 

eligibility status; 

identified disability; 

requested type of service which shall 

include, but not be limited to: 

name and location of service 



m 



referred to; 



(ii) date of need for service; 
(iii) service availability: and 
(F) status of referral which includes the 
following: 



(i) slot availability; 
(ii) acceptance of referral; 
(iii) date of enrollment: 
(iv) rejection of referral; and 
(b) The area authority shall ensure: 
(1) adherence to notification procedures as 



i2) 
il) 



iA) 
IS) 

i£) 
ffi) 

mi 

IE) 



i4) 



(5) 

(6) 

iZ) 



set forth in JO NCAC 18A .0605 NO- 
TIFICATION PROCEDURES FOR 
PROVISION OF SERVICES; 
compliance with PL. 99-457 regarding 
45-day waiting list; 

that annual summary reports for waiting 
lists are submitted to the Division by 
January 30 of each year which shall 
include, but need not be limited to: 
the information as specified in Sub- 
paragraph (a)(4) of this Rule; 
types of services (all clients referred 
to each service including date, status, 
and number of days waiting by ser- 
vice type code); 

providers of services (providers in 
provider code order); 
provider statistics on referrals (pro- 
viders with number of referrals and 
length of waiting period); 
service type statistics (service types 
with number of referrals and length of 
waiting period); and 
frequency report (providers, service 
types and age groups with the number 
of referrals for each and the percent 
of the total it represents). 
review of the plan by the Community 
Interagency Council for approval by the 
Area Board. Written comments of the 
Interagency Council shall accompany 
the area plan for consideration by the 
area board and the Division, 
that the plan is forwarded to the Divi- 



sion to be reviewed by the Secretary for 
approval; 

that any changes in the plan are re- 
viewed and approved by the Secretary, 
once the area is designated as single 
portal: and 

that the approved plan is made available 
to local service providers, agencies and 
consumers. 



Statutory Authority G.S. 143B-147. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15A NCAC WD .0002. with changes from the 



.IS 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



proposed text noticed in the Register. Volume 8, 
Issue 15, pages 1413 - 1416 and Issue 17, pages 
1631 - 1633. 

1 he proposed effective date of this action is July 
1, 1994. 

Jxeason for Proposed Action: Changes and 
revision to the rule made in response to public 
comment. 

(comment Procedures: The record will he open 
for receipt of written comments from April 4, 1994 
to May 5, 1994. Such written comments must be 
delivered or mailed to the N. C. Wildlife Resources 
Commission, 512 N. Salisbury Street, Raleigh, NC 
27604-1188. 

Editor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10D - GAME 
LANDS REGULATIONS 

.0002 GENERAL REGULATIONS 
REGARDING USE 

(a) Trespass. Entry on game lands for purposes 
other than hunting, trapping or fishing shall be as 
authorized by the landowner and there shall be no 
removal of any plants or parts thereof, or other 
materials, without the written authorization of the 
landowner. Travel is restricted, except by autho- 
rized personnel, to direct access from SR 2074 to 
the established waterfowl viewing stands on 
Cowan's Ford Waterfowl Refuge. The Wildlife 
Resources Commission may designate areas on 
game lands as either an Archery Zone, Safety 
Zone or Restricted Zone. 

(1) Archery Zone. On portions of game 
lands posted as "Archery Zones" 
hunting is limited to bow and arrow 
hunting only. 

(2) Safety Zone. On portions of game 
lands posted as "Safety Zones" hunting 



is prohibited. No person shall hunt or 
discharge a firearm or bow and arrow 
within, into, or across a posted safety 
zone on any game land. 

(3) Restricted Zone. Portions of game 
lands posted as "Restricted Zones" are 
closed to all use by the general public. 
and entry upon such an area for any 
purpose is prohibited without first 
having obtained specific written 
approval of such entry or use from an 
authorized agent of the Wildlife 
Resources Commission. 

(4) Establishment of Archery and 
Restricted Zones. The Commission 
will conduct a public input meeting in 
the area where the game land is located 
before establishing any archery or 
restricted zone. After the input meeting 
the public comments will be presented 
to an official Commission meeting for 
final determination. 

(b) Littering. No person shall deposit any litter, 
trash, garbage, or other refuse at any place on any 
game land except in receptacles provided for 
disposal of such refuse at designated camping and 
target-shooting areas. No garbage dumps or 
sanitary landfills shall be established on any game 
land by any person, firm, corporation, county or 
municipality, except as permitted by the 
landowner. 

(c) Possession of Hunting Devices. It is 
unlawful to possess a firearm or bow and arrow on 
a game land at any time except during the open 
hunting seasons or hunting days for game birds or 
game animals, other than fox, thereon unless said 
device is cased or not immediately available for 
use, provided that such devices may be possessed 
and used by persons participating in field trials on 
field trial areas and on target shooting areas 
designated by the landowner, and possessed in 
designated camping areas for defense of persons 
and property; and provided further that .22 caliber 
pistols with barrels not greater than seven and 
one-half inches in length and shooting only short, 
long, or long rifle ammunition may be carried as 
side arms on game lands at any time other than by 
hunters during the special bow and arrow and 
muzzle-loading firearms deer hunting seasons and 
by individuals training dogs during closed season 
without field trial authorization. This Rule shall 
not prevent possession or use of a bow and arrow 
as a licensed special fishing device in those waters 
where such use is authorized. During the closed 
firearms seasons on big game (deer, bear, boar. 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



39 



PROPOSED RULES 



wild turkey), no person shall possess a shotgun 
shell containing larger than No. 4 shot or any rifle 
or pistol larger than a .22 caliber rimfire while on 
a game land, except that shotgun shells containing 
any size steel or non-toxic shot may be used while 
waterfowl hunting. No person shall hunt with or 
have in possession any shotgun shell containing 
lead or toxic shot while hunting on any posted 
waterfowl impoundment on any game land, or 
while hunting waterfowl on Butner-Falls of Neuse 
Game Land or New Hope Game Land, except 
shotgun shells containing lead buckshot may be 
used while deer hunting, 
(d) Game Lands License: 

(1) Hunting and Trapping: 

(A) Requirement. Except as provided in 
Part (B) of this Subparagraph, any 
person entering upon any game land 
for the purpose of hunting, trapping, 
or participating in dog training or 
field trial activities must have in his 
possession a game lands license in 
addition to the appropriate hunting or 
trapping licenses. 

(B) Exceptions: 

(i) A person under 16 years of age 
may hunt on game lands on the 
license of his parent or legal 
guardian. 

(ii) The resident and nonresident 
sportsman's licenses include game 
lands use privileges. 

(iii) Judges and nonresidents 
participating in field trials under 
the circumstances set forth in 
Subsection (e) of this Rule may 
do so without the game lands 
license. 

(iv) On the game lands listed in Rule 
.0003(d)( 1 ) of this Subchapter the 
game lands license is required 
only for hunting doves; all other 
activities are subject to the control 
of the landowners. 

(2) Trout Fishing. Any person 16 years of 
age or over, including an individual 
fishing with natural bait in the county 
of his residence, entering a game land 
for the purpose of fishing in designated 
public mountain trout waters located 
thereon must have in his possession a 
game lands license in addition to the 
regular fishing license and special trout 
license. The game lands license is not 
required to fish in that part of Slick 



Rock Creek which coincides with the 

Tennessee State line, or when fishing 

from boat on Calderwood Lake. The 

resident and nonresident sportsman's 

licenses and short-term comprehensive 

fishing licenses include trout fishing 

privileges on game lands. 

(e) Field Trials and Training Dogs. A person 

serving as judge of a field trial which, pursuant to 

a written request from the sponsoring organization, 

has been officially authorized in writing and 

scheduled for occurrence on a game land by an 

authorized representative of the Wildlife Resources 

Commission, and any nonresident participating 

therein may do so without procuring a game lands 

license, provided such nonresident has in his 

possession a valid hunting license issued by the 

state of his residence. 

Any individual or organization sponsoring a field 
trial on the Sandhills Field Trial grounds or the 
Launnburg Fox Trial facility shall file with the 
commission's agent an application to use the area 
and facility accompanied by a check for the facility 
use fee computed at the rate of fifty dollars 
($50.00) for each scheduled day of the trial. The 
total facility use fee will cover the period from 
12:00 noon of the day preceding the first 
scheduled day of the trial to 10:00 a.m. of the day 
following the last scheduled day of the trial. The 
facility use fee must be paid for all intermediate 
days on which for any reason trials are not run but 
the building or facilities are used or occupied. A 
fee of twenty-five dollars ($25.00) per day shall be 
charged to sporting, educational, or scouting 
groups for scheduled events utilizing the club 
house only. No person or group of persons or any 
other entity shall enter or use in any manner any 
of the physical facilities located on the Laurinburg 
Fox Trial or the Sandhills Field Trial grounds 
without first having obtained specific written 
approval of such entry or use from an authorized 
agent of the Wildlife Resources Commission, and 
no such entry or use of any such facility shall 
exceed the scope of or continue beyond the 
specific approval so obtained. 

The Sandhills Field Trial facilities shall be used 
only for field trials scheduled with the approval of 
the Wildlife Resources Commission. No more 
than 16 days of field trials may be scheduled for 
occurrence on the Sandhills facilities during any 
calendar month, and no more than four days may 
be scheduled during any calendar week; provided, 
that a field trial requiring more than four days may 
be scheduled during one week upon reduction of 
the maximum number of days allowable during 



40 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



some other week so that the monthly maximum of 
16 days is not exceeded. Before October 1 of each 
year, the North Carolina Field Trial Association or 
other organization desiring use of the Sandhills 
facilities between October 22 and November 18 
and between December 3 and March 31 must 
submit its proposed schedule of such use to the 
Wildlife Resources Commission for its 
consideration and approval. The use of the 
Sandhills Field Trial facilities at any time by 
individuals for training dogs is prohibited; 
elsewhere on the Sandhills Game Lands dogs may 
be trained only on Mondays, Wednesdays and 
Saturdays from October 1 through April 1 . 

Dogs may not be trained or permitted to run 
unleashed from between April 1 through and 
August 15 on any game land located west of 1-95, 
except when participating in field trials sanctioned 
by the Wildlife Resources Commission. 

(f) Trapping. Subject to the restrictions 
contained in 15A NCAC 10B .0110, .0302 and 
.0303, trapping of furbearing animals is permitted 
on game lands during the applicable open seasons, 
except that trapping is prohibited: 

(1) on the field trial course of the Sandhills 
Game Land; 

(2) on the Harmon Den and Sherwood bear 
sanctuaries in Haywood County; 

(3) in posted "safety zones" located on any 
game land; 

(4) by the use of multiple sets (with 
anchors less than 15 feet apart) or bait 
on the National Forest Lands bounded 
by the Blue Ridge Parkway on the 
south, US 276 on the north and east, 
and NC 215 on the west; 

(5) on that portion of the Butner-Falls of 
Neuse Game Lands marked as the 
Penny Bend Rabbit Research area; 

(6) on Cowan's Ford Waterfowl Refuge in 
Gaston, Lincoln and Mecklenburg 
Counties; 

(7) on the Hunting Creek Swamp 
Waterfowl Refuge. 

On those areas of state-owned land known 
collectively as the Roanoke River Wetlands and 
including the Broadneck, Company Swamp, 
Conine Island, Speller-Outlaw and Urquhart tracts, 
controlled trapping is allowed under a permit 
system. For information contact the Division of 
Wildlife Management of the Wildlife Resources 
Commission. 

(g) Use of Weapons. No person shall hunt or 
discharge a firearm or bow and arrow from a 
vehicle, or within 200 yards of any building or 



designated camping area, or within, into, or across 
a posted "safety zone" on any game land. No 
person shall hunt with or discharge a firearm 
within, into, or across a posted "restricted zone" 
on any game land. 

(h) Vehicular Traffic. No person shall drive a 
motorized vehicle on any game land except on 
those roads constructed and maintained for 
vehicular travel and those trails posted for 
vehicular travel; unless such person: 

is a participant in scheduled bird dog field 
trials held on the Sandhills Game Land; or 

{2) is a disabl e d licens e holder pursuant to 

G.S. 113 270.2 and G.S. 113 271 and 
th e und e rlying ba s i s for obtaining suoh 
license was limited physical mobility. 
Persons — m e eting — this — criteria — may 
operat e el e ctrio — wh e elchairs and All 
T e rrain V e hicle s on those game land s 
own e d — by — the — Wildlif e — Resources 

Commission. F©f — purposes — of this 

Rul e , the term "wh e elchair" i3 defin e d 
as a devic e that is design e d sol e ly to be 
u se d by mobility impair e d individual s 
for locomotion. The term "All Terrain 
Vehicle" is defin e d as those vehicles 
having — thr e e — ef — few — wh ee ls, — tife 
pressure of no more than five pounds 
per square inch and a gross vehicle 
w e ight of no mor e than 600 pound s . 
Notwith s tanding thi s Rule, no per s on 
shall op e rate an e l e ctrio wh ee lchair, an 
AH — T e rrain V e hicle, — er — any — other 
motoriz e d vehicl e on wildlife plantings, 
high risk areas of e rosion, d e dicat e d 
natur e pre se rv es , oth e r area s in whioh 
no acc e ss is permitt e d or in streams 
except at ford cro ss ings. 
(2) holds a special vehicular access 
identification card and permit issued by 
the Commission based upon competent 
medical evidence submitted by the 
person verifying that a handicap exists 
that limits physical mobility to the 
extent that normal utilization of the 
game lands is not possible without 
vehicular assistance. Persons meeting 
this requirement may operate electric 
wheel chairs, all terrain vehicles, and 
other passenger vehicles on ungated or 
open-gated roads otherwise closed to 
vehicular traffic on game lands owned 
by the Wildlife Resources Commission 
and on game lands whose owners have 
agreed to such use. Those game lands 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



41 



PROPOSED RULES 



where this special rule applies will be 
designated in the game land rules and 
map book. This special access rule for 
disabled sportsmen does not permit 
vehicular access on fields, openings, 
roads, paths, or trails planted to 
wildlife food or cover. One able- 
bodied companion, who is identified by 
a special card issued to each qualified 
disabled person, may accompany a 
disabled person to provide assistance, 
provided the companion is at aU time in 
visual or verbal contact with the 
disabled person. The companion may 
participate in all lawful activities while 
assisting a disabled person, provided Ijh 
cense requirements are met. Any ve- 
hicle used by a qualified disabled 
person for access to game lands under 
this provision must prominently display 
the vehicular access permit issued by 
the Wildlife Resources Commission in 
the passenger area of the vehicle. 
(i) Camping. No person shall camp on any 
game land except on an area designated by the 
landowner for camping. 

(j) Swimming. Swimming is prohibited in the 
lakes located on the Sandhills Game Land. 

(TO Disabled Sportsman Program. In order to 
qualify for special hunts for disabled sportsman 
listed in 15A NCAC 10D .0003 an individual must 
have in their possession a Disabled Sportsman per- 
mit issued by the Commission. In order to qualify 
for the permit, the applicant must provide medical 
certification of one or more of the following 
disabilities: 



LU 

12} 

m 



amputation of one or more limbs; 
paralysis of one or more limbs; 
dysfunction of one or more limbs ren- 
dering the person unable to perform the 
task of grasping and lifting with the 
hands and arms or unable to walk 
without mechanical assistance, other 
than a cane; 

(4) disease or injury, or defect confining 
the person to a wheelchair, walker, or 
crutches; or 

(5) legal deafness. 

Participants in the program, except those qualify- 
ing by deafness, may operate vehicles on ungated 
or open-gated roads normally closed to vehicular 
traffic on Game Lands owned by the Wildlife 
Resources Commission. Each program participant 
may be accompanied by one able-bodied compan- 
ion provided such companion has |n his possession 



the companion permit issued with the Disabled 
Sportsman permit. 

(i) Release of Animals. It is unlawful to release 
pen-raised animals or birds, or wild animals or 
birds on Game Lands without written authoriza- 
tion. 

Statutory- Authority G.S. 113-134; 113-264; 
113-270.3; 113-291.2; 113-291.5; 113-305; 
113-306. 



I\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15A NCAC 101 .0001, with changes from the 
proposed text noticed in the Register , Volume 8, 
Issue 20, pages 1959 - 1960. 

1 he proposed effective date of this action is July 
1, 1994. 

MXeason for Proposed Action: To establish defini- 
tions, criteria and procedures for designation of 
critical habitat. 

Ksomment Procedures: The record of hearing will 
be open for receipt of written comments from April 
4, 1994 to May 4, 1994. Such written comments 
must be delivered or mailed to the N. C. Wildlife 
Resources Conunission, 512 N. Salisbury Street, 
Raleigh. NC 27604-1188. 

Auditor's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

SUBCHAPTER 101 - ENDANGERED 
AND THREATENED SPECIES 

.0001 DEFINITIONS AND PROCEDURES 

For the purposes of thi s Subchapt e r, th e follow 
ing d e finition shall apply: — "Species" moan s any 
taxonomie grouping of wildlif e th e adult members 
of which int e rbr ee d and r e produc e th e ir kind. 

(a) For the purposes of this Subchapter, the 
following definitions shall apply: 



42 



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NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



(1) "Best available scientific evidence" is 
the existing biological, chemical, and 
physical data on the distribution, status, 
abundance, and population dynamics of 
a wild animal species and on the suffi- 
ciency or insufficiency of the biological 
and physical features of a critical habi- 
tat that have been collected and ana- 
lyzed by competent biologists using 
objective, scientific methods. 

(2) "Biological and physical features " are 
the known parameters and characteris- 
tics of a critical habitat necessary to 
sustain essential life processes of a wild 
animal species. 

(3) "Conservation of a protected animal 
species" is defined by G.S. 113-331(1). 

(4) "Conservation plan" shall be a written 
plan developed by the Wildlife 
Resources Commission using its 
resources and expertise in the biological 
and ecological sciences with input from 
other agencies that documents problems 
in the biological and physical features 
of a critical habitat and identifies 
possible remedies. 

(A) The conservation plan shall contain 
the best available scientific evidence 
that forms the basis for designation of 
the critical habitat and may contain 



recommended actions to be taken for 
special conservation, protection, and 
management of the critical habitat. 

(B) The conservation plan may contain 
more than one critical habitat if the 
threats to the habitats and the 
endangered and threatened wild 
animal species occupying them are 
similar. 

(C) The conservation plan shall be 
available for public review and 
comment. 

(5) "Critical habitat" means any habitat 



essential to the 
protected animal 



conservation of a 
species listed as 



endangered or threatened in Rule .0003 

or .0004 of this Subchapter. 
(A) Critical habitat shall include areas 
within the occupied or potential geo- 
graphical range of a protected animal 
species or other critical areas that 
contain or impact the biological and 
physical features essential to the 
conservation of a protected animal 
species and for which special conser- 



(B) 



£Q 



161 



121 

111 



vation, protection, and management 
actions may be required. 
Critical habitat shall not include the 
entire occupied or potential geograph- 
ical range of a protected animal s pe- 
cies or all areas that impact upon a 
protected animal species unless the 
best available scientific evidence 
indicates that special conservation, 
protection, and management of the 
area or the entire range is essential to 
the conservation of a protected animal 
species. 

Critical habitats designations shall be 
listed in this Subchapter and shall 
include an accurate description of the 
habitats and their boundaries, the 
endangered and threatened wild ani- 
mal species occupying the habitats, 
and the reason and basis for designa- 
tion. 
"Life processes" are those biological 
functions of a wild animal species 
essential to the health and survival of 
individual organisms and perpetuation 
of a wild animal species. 
" Protected animal" is defined in G.S. 
113-331(5). 

"Special conservation, protection, and 
management" are measures that may be 
taken and restrictions that may be im- 



£21 



(10) 



posed necessary to preserve or restore 
the essential biological and physical 
features of a critical habitat. 



"Species" means the taxonomic group- 
ing of wildlife, the sexually mature 
members of which interbreed and re- 
produce their own kind. 
"Wild animal" is defined 



in G.S. 



113-331(10). 



(b) For the purposes of this Subchapter, the 
following procedure s applies for the designation of 
critical habitat. 

Wildlife Resources Commission 



ill 



ill 



The 

shall undertake designation of critical 
habitat with the advice and upon the 
recommendation of the Nongame Wild- 
life Advisory Committee and shall base 
any decision to list critical habitat upon 
the best available scientific evidence. 
Upon finding that designation of critical 
habitat is essential to the conservation 
of a protected animal species listed as 
endangered or threatened pursuant to 
Rule .0003 or .0004 of this Subchapter, 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



43 



PROPOSED RULES 



the Wildlife Resources Commission 
shall publish in the North Carolina 
Register notice of hearing and intent to 
designate the area as critical habitat and 
shall invite representatives of interested 
agencies with jurisdiction over mea- 
sures and restrictions that could effect 
special conservation, protection, and 
management of the critical habitat to 
participate in development of a conser- 
vation plan for the critical habitat. 

(3) Prior to the public hearing on designa- 
tion of critical habitat, the conservation 
plan shall be complete and available for 
public review and shall be provided to 
other appropriate agencies. 

(4) The Wildlife Resources Commission 
shall base its decision to list or not list 
a critical habitat solely upon the deter- 
mination of whether or not the critical 
habitat is essential for the conservation 
of a protected animal species. Consid- 
erations related to the appropriateness 
or implementation of special conserva- 
tion, protection, and management ac- 
tions recommended in the conservation 
plan shall not bear upon the decision to 
list or not fist a critical habitat. 

Statutory- Authority G.S. 113-132; 113-134; 
113-331; 113-333; 113-334; 113-336; 143-239. 

TITLE 21 - OCCUPATIONAL 
LICENSING BOARDS 

CHAPTER 1 - NORTH CAROLINA 
ACUPUNCTURE LICENSED BOARD 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Acupuncture 
Licensing Board intends to adopt rules cited as 21 
NCAC 1.0101 - .0103. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 4:00 
p.m. on May 5, 1994 at the Pack Memorial Li- 
brary, 67 Haywood St. , Ashexille, NC 28801. 

MXeason for Proposed Action: The North Carolina 
Legislature created the North Carolina Acupunc- 



ture Licensing Board to regulate the practice of 
acupuncture. 

Comment Procedures: Written comments may be 
sent directly to the North Carolina Acupuncture 
Licensing Board. All written comments should be 
received by 5:00 p.m. on May 5, 1994. Send to: 
North Carolina Acupuncture Licensing Board, 
P.O. Box 25171, Asheville, NC 28803. 

tiditor's Note: These Rules were filed as tempo- 
rary rules effective March 18, 1994 for a period 
of 180 days or until the permanent rule becomes 
effective, whichever is sooner. 

SECTION .0100 - LICENSURE 

.0101 QUALIFICATIONS FOR LICENSURE 

In addition to and for the purposes of meeting the 
requirements of G.S. 90-455 an applicant for 
licensure shall: 

(1) Submit an application as required by the 
Board. 

(2) Submit fees as required by Rule .0103 of 
this Section. 

(3) Submit proof of a passing score on the 
National Commission for the Certifica- 
tion of Acupuncturists' (NCCA) certify- 
ing examination or a passing score from 
any state utilizing the NCCA examina- 
tion. 

(4) Submit affidavit of completion of a 
three-year postgraduate acupuncture 
college (NACSCAOM). 

(5) Successfully complete the Clean Needle 
Technique course offered by the Council 
of Colleges of Acupuncture and Oriental 
Medicine (CCAOM). 

(6) Submit any documentation, m a language 
other than English, accompanied by a 
translation into English by a translator 
other than the applicant, which translated 
documents must bear the affidavit of the 
translator certifying that he is competent 
in both the language of the document and 
the English language and that the 
translation is a true and complete 
translation of the foreign language 
original, and be sworn to before a notary 
public. Translation of any document 
relative to a person's application shall be 
at the expense of the applicant. 

(7) Submit all correspondence to North 



44 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



Carolina Acupuncture Licensing Board, 
P.O. Box 25171, Asheville, NC 28803. 

Statutory Authority G. S. 90-455. 

.0102 QUALIFICATIONS FOR 
GRANDFATHERING 

An a pplicant for grandfathering shall: 

Submit an a pplication as required by the 
Board before December 31, 1994. 
Submit fees as required by Rule .0103 of 
this Section. 

Provide proof of residency \n North 
Carolina as of January l_i 1993. 



ill 

m 

13} 

{41 

{§} 

£b} 



Fulfill one of the following: 
Submit an affidavit of completion of 
training from an approved acupuncture 
college; or 

Successfully complete the Clean Needle 
Technique (CNT) course and score 15 
points as outlined in this Sub-item to 
qualify under a Board approved training 
program . 
(i) Proof of a passing score on the Na- 
tional Commission for the Certifica- 
tion of Acupuncturists' certifying 
examination is equal to _15 points. 
(ii) Training: Whether formal or through 
an a pprenticeship, an applicant must 
accrue at least 5 points in any combi- 
nation of the categories in Sub-items 
(4)(b)(ii)(A) and £B} if Sub-item 
(4)(b)(i) is not met. 

(A) A pprenticeship - One point for 
each 150 documented hours with 
an acupuncturist. 

(B) Formal Education - One point for 
each 100 documented hours in a 
formal training program. 

(in) Experience: An applicant shall accrue 
a minimum of five points in the expe- 
rience category if Sub-item (4)(b)(i) is 
not met. 

(A) Applicant's practice must consist 
of at least 90% acupuncture. 
Treatments for smoking cessation 
and weight loss shall not be con- 
sidered if they comprise more 
than 40% of the practice. 

(B) Five points are awarded for 2,000 
patient hours within the last three 
years prior to application for 
licensure. A minimum of 100 
different patients must have been 
treated. 



(C) Ten points will be awarded for 

4,000 patient hours within the last 

three years prior to application for 

licensure. A minimum of 100 

different patients must have been 

treated. 

(5) Submit all correspondence to the North 

Carolina Acupuncture Licensing Board, 

P.O. Box 25171. Asheville. NC 28803. 

Statutory Authority 1993 S.L., c. 303, s. 3. 



0103 


FEES 




The following fees shall apply: 




ill 


Acupuncturists: 




£§} 


Application fee for initial 






license 


$100.00 




This fee shall be non-refundab 


le wheth- 




er the application is approved or de- 




nied. 




£b) 


Initial Biennial Licensing Fee 


$500.00 


i£l 


Renewal of Biennial License 


$300.00 


12} 


License Fees: 




fa) 


Duplicate license fee 


$25.00 




Duplicate wall certificate fee 


$50.00 


£b} 


Late fee for reinstatement of 


a license 




which remains lapsed for more than 60 




days 


$50.00 


l£) 


Fee for providing a roster of licensed 




acupuncturists 


$10.00 


id} 


Returned check fee 


$20.00 


£e} 


Fee for verification of North 


Carolina 




licensure to another state 


$25.00 


ffi 


Name change 


$5.00 


£g) 


Tutorial application fee 


$200.00 


(hi 


Annual tutorial application 


renewal 




fee 


$100.00 


ill 


Continuing education program 


approval 




fee 


$50.00 


ID 


Continuing education provider 


approval 




fee 


$50.00 


iti 


Initial school application fee 


$750.00 


ID 


Renewal school application fee $500.00 


1m} 


Photocopy fee (per page) 


$0.25 




Facsimile fee (per page) 


$3.00 



Statutory Authority G.S. 90-457. 

CHAPTER 36 - BOARD 
OF NURSING 

/V otice is hereby given in accordance with G.S. 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



45 



PROPOSED RULES 



150B-21.2 that the North Carolina Board of 
Nursing intends to amend rules cited as 21 NCAC 
36.0211, .0213, .0218 and .0219. 

1 he proposed effective date of this action is July 
1. 1994. 

1 he public hearing will be conducted at 1:00 
p.m. on April 21, 1994 at the Brownstone Hotel, 
1707 Hillsborough Street, Raleigh, NC 27605. 

Reason for Proposed Action: 

21 NCAC 36 .0211 and .0213 - To be consistent 

with changes in the Board policies and National 

Council requirements with the implementation of 

Computer Adaptive Testing. 

21 NCAC 36 .0218 - To be consistent with Board 

Policy and to be consistent with G.S. 90-171. 33(c) 

- Nursing Practice Act (effective June 1993). 

21 NCAC 36 .0219 - To be consistent with G.S. 

90-171. 33(b) (Nursing Practice Act) in relation to 

implementation of Computer Adaptive Testing 

(effective June 1993). 

Lsomment Procedures: Any person wishing to 
present oral testimony relevant to proposed rules 
may register at the door before the hearing begins 
and present hearing officer with a written copy of 
testimony. Written comments concerning these 
amendments must be submitted by May 4, 1994, to 
Jean Stanley, CPS, APA Coordinator, N. C. Board 
of Nursing, P.O. Box 2129, Raleigh, NC 27602- 
2129. 

SECTION .0200 - LICENSURE 

.0211 EXAMINATION 

(a) An applicant meets the educational qualifica- 
tions to write take the examination for licensure to 
practice as a registered nurse by: 

(1) graduating from a Board approved 
nursing program designed to prepare a 
person for registered nurse licensure; 

(2) graduating from a nursing program 
outside the United States or Canada that 
is designed to provide graduates with 
comparable preparation for licensure as 
a registered nurse, and submitting the 
certificate issued by the Commission on 
Graduates of Foreign Nursing Schools 
as evidence of the required educational 
qualifications. 



(b) An applicant meets the educational qualifica- 
tions to write take the examination for licensure to 
practice as a licensed practical nurse by: 

(1) graduating from a Board approved 
nursing program designed to prepare a 
person for practical nurse licensure; 

(2) graduating from a nursing program 
outside the United States or Canada that 
is designed to provide graduates with 
comparable preparation for licensure as 
a licensed practical nurse, and submit- 
ting evidence from a Board approved 
evaluation agency of the required edu- 
cational qualifications and evidence of 
English proficiency from a Board ap- 
proved agency or service; 

(3) graduating from a Board approved 
nursing program designed to prepare 
graduates for registered nurse licensure, 
and failing to pass the examination for 
registered nurse licensure; 

(4) graduating from a nursing program 
outside the United States and Canada 
that is designed to prepare graduates for 
registered nurse licensure, submitting 
evidence of English proficiency from a 
Board approved agency or service, and 
failing to pass the examination for 
registered nurse licensure in any juris- 
diction; or 

(5) completing a Board approved course of 
study such as offered by the military 
service branches for Hospital Corps- 
man. The Board approved course of 
study includes shall include : 

(A) a couro e e quivalent to th e U.S. Navy 
Hospital Corpsman Basic (Class "A") 
military service branch basic hospital 
corpsman course; 

(B) Advanc e m e nt Examination for Navy 
Hospital Corpsman Third Class or an 
e quival e nt — e xamination; advanced 
training in clinical nursing practice; 

(C) a college level human lifespan growth 
and development course; and 

(D) a nursing course provided by the 
Navy or anoth e r an approved agency 
that includes maternal-child nursing 
theory and clinical, the legal role of 
the LPN, the nursing process and 
nutrition. 

(c) An application to the Board of Nursing for 
e xamination shall be submitted to the Board of 
Nursing and a registration form to the testing 
service. The applicant must meet all requirements 



46 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



of at least 60 dayo prior to the examination. — 
Purouant to Tho Am e rioan o with DiBabiliti e o Act 
and guidelines e stnbliohed by the National Council 
of State Boards of Nursing, Inc. , the Board cannot 
aooopt applications r e o e iv e d aft e r th e e stablish e d 
deadline dat e . — An admission oard with sp e cific 
information as to time, date and place of examina 
tion will bo mailed to th e applioant approximat e ly 
1 4 dayo prior to the dat e of th e e xamination. 

(d) The initial application will be held active 
until the applicant passes the examination or one 
year, whichever occurs first. The time begins on 
the date the applicant is determined to be eligible 
for the licensure examination. The Authorization 
to Test document issued by the testing service will 
be valid until the applicant takes the examination 
or 180 days, whichever occurs first. The applicant 
must submit a fee to re-establish eligibility for an 
expired Authorization to Test document. 

[e)(d} The examinations for licensure developed 
by the National Council of State Boards of Nurs- 
ing, Inc. shall be the examinations for licensure as 
a registered nurse or as a licensed practical nurse 
in North Carolina. 

(1) These examinations shall be adminis- 
tered in accordance with the contract 
between the Board of Nursing and the 
National Council of State Boards of 
Nursing, Inc. 

(2) The examinations for licensure shall be 
administered at least twice a year. 

(3) Scores on Results for the examination 
shall be reported, by mail only, to the 
individual applicant and to the director 
of the program from which the appli- 
cant was graduated. Aggregate results 
from the examination(s) may be pub- 
lished by the Board. 

(4) The passing standard score for each of 
the five tests comprising the examina- 
tion for registered nurse licensure, up 
to and including the February 1982 
examination is 350. For the examina- 
tion offered in July 1982 and through 
July 1988, the passing score is 1600. 
Beginning February 1989, the results 
for registered nurse licensure is report- 
ed as "PASS" or "FAIL". 

(5) The passing score for the examination 
for practical nurse licensure, up to and 
including the April 1988 is 350. Begin- 
ning October 1988, the results for 
practical nurse licensure is reported as 
"PASS" or "FAIL". 

I£He) Applicants who meet the qualifications for 



licensure will be issued a certificate of registration 
and a license to practice nursing for the remainder 
of the year- biennial period . 

(g)-ff-) Applicants for a North Carolina license 
may take the examination for licensure developed 
by the National Council of State Boards of Nurs- 
ing, Inc. in another any member jurisdiction of the 
Unit e d States, providing: Council. 

fH the Board of Nursing in that jurisdiction 

oons e nts to proctor th e applioant; 

(3) arrang e ments — are — mad e — through — the 

North Carolina Board of Nursing suffi 
ciently in advanc e of th e e xamination 
date to meet application r e quir e ments in 
both jurisdictions; and 

0) the — applioant — pays — any — s e rvioo — fee 

charg e d by the prootoring Board. 
{g) — Th e North Carolina Board of Nursing may 
proctor an examination upon r e qu e st of another 
stat e Board of Nursing at th e r e gularly scheduled 
examination sessions if space is availabl e . — T-he 
applicant shall s ubmit a s e rvic e f ee for such proo 
to ring. 

Statutory Authority G.S. 90-171.23(15); 90- 
171.29; 90-171.30. 

.0213 REEXAMINATION 

An applicant who fails an examination and is 
eligible to take retake a subsequent examination 
must submit a completed Board of Nursing 
application, and the current examination fee by the 
publish e d — deadline — date — fef — that — examination 
session. — That applicant i s not consid e r e d a first 
tim e writer of the e xamination a completed testing 
service registration form, and related fees. The 
applicant is eligible to retake the examination no 
more frequently than every 90 days. 

Statutory Authority G. S. 90-171.31; 90-171.33; 
90-171.38. 

.0218 LICENSURE WITHOUT 
EXAMINATION (BY 
ENDORSEMENT) 

(a) The Board will provide an application form 
which the applicant who wishes to apply for 
licensure without examination (by endorsement) 
must complete in its entirety. 

(1) The applicant for licensure by 

endorsement as a registered nurse is 

required to show evidence of: 

(A) completion of a nursing program 

approved by the jurisdiction of 

original licensure; 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



47 



PROPOSED RULES 



(B) attainment of a standard score equal 
to or exceeding 350 on each test in 
the State Board Test Pool 
Examination administered prior to 
July 1982; or a standard score of 
1600 on the licensing examination 
developed by the National Council of 
State Boards of Nursing, Inc. 
beginning in July 1982 and up to and 
including the July 1988 examination; 
or beginning in February 1989, a 
result of "PASS". An exception to 
this requirement is made for the 
applicant who was registered in the 
original state prior to April 1964. 
Such applicant must have attained the 
score, on each test in the series, 
which was required by the state 
issuing the original certificate of 
registration; 

(C) mental and physical health necessary 
to competently practice nursing; 

(D) unencumbered license in all 
jurisdictions in which a license is or 
has ever been held; if the license in 
the other jurisdiction has been inactive 
or lapsed for five or more years, the 
applicant will be subject to 
requirements for a refresher course as 
indicated in G.S. 90-171.35 and 90- 
171.36; and 

(E) completion of all court conditions 
resulting from any misdemeanor or 
felony conviction(s). 

(2) The applicant for licensure by 
endorsement as a licensed practical 
nurse is required to show evidence of: 
(A) completion of: 

(i) a program in practical nursing 

approved by the jurisdiction of 

original licensure; or 

(ii) course(s) of study within an 

approved program(s) which is(are) 

comparable to that required of 

practical nurse graduates in North 

Carolina; or 

(iii) approved course of study for 

military hospital corpsman which 

is(are) comparable to that required 

of practical nurse graduates in 

North Carolina. 

The applicant who was graduated prior 

to July 1956 will be considered on an 

individual basis in light of licensure 

requirements in North Carolina at the 



time of original licensure; 

(B) achievement of a passing score on the 
State Board Test Pool Examination or 
the licensing examination developed 
by the National Council of State 
Boards of Nursing, Inc. If originally 
licensed on or after September 1 , 
1957, and up to and including the 
April 1988 examination, an applicant 
for a North Carolina license as a 
practical nurse on the basis of 
examination in another state must 
have attained a standard score equal 
to or exceeding 350 on the licensure 
examination. Beginning in October 
1988, an applicant must have received 
a result of "PASS" on the licensure 
examination. The applicant who was 
licensed prior to September 1, 1957 
must have attained the score which 
was required by the jurisdiction 
issuing the original certificate of 
registration; 

(C) mental and physical health necessary 
to competently practice nursing; 

(D) unencumbered license in all 
jurisdictions in which a license is or 
has ever been held; if the license in 
the other jurisdiction has been inactive 
or lapsed for five or more years, the 
applicant will be subject to 
requirements for a refresher course as 
indicated in G. S. 90-171.35 and 90- 
171.36; and 

(E) completion of all court conditions 
resulting from any misdemeanor or 
felony conviction(s). 

(b) The North Carolina Board of Nursing will 
require applicants for licensure by endorsement to 
provide proof of secondary education achievement 
only if deemed necessary for identification, or 
other just cause. 

(c) Graduates of Canadian nursing programs 
who have been licensed in Canada on the basis of 
the Canadian Nurses' Association Test Service 
Examination (CNATS) written in the English 
language are eligible to apply for registration by 
endorsement provided the applicant has not failed 
the examination developed by the National Council 
of State Boards of Nursing, Inc. — m — North 
Carolina. 

(d) A nurse educated and licensed outside the 
United States is eligible for North Carolina 
licensure by endorsement if the nurse has: 

(1) proof of education as required by the 



48 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



Board or a certificate issued by the 
Commission on Graduates of Foreign 
Nursing Schools; and 
(2) proof of passing the licensing 
examination developed by the National 
Council of State Boards of Nursing, 
Inc. in another jurisdiction. An 
exception to this requirement is made 
for the applicant who was registered by 
Canadian province examination written 
in the English language prior to 
CNATS or SBTPE, and has worked in 
nursing within the past five years or has 
completed a Board-approved refresher 
course. 

(e) When completed application, evidence of 
current license in another jurisdiction, and fee are 
received in the Board office, a temporary license 
is may be issued to the applicant. Employer 
references may be requested to validate competent 
behavior to practice nursing. 

(f) Facts provided by the applicant and the 
Board of Nursing of original licensure are 
compared to confirm the identity and validity of 
the applicant's credentials. Status in other states 
of current licensure is verified. When eligibility is 
determined, a certificate of registration and a 
current license for the remainder of the cal e ndar 
year biennial period are issued. 

Statutory Authority G. S. 90-171. 23(b); 90-171.33; 
90-171.37. 

.0219 TEMPORARY LICENSE 

(a) Th e Board of Nursing may issue a Status A 
nonrenewable — temporary — lio e nBe — und e r — the 
following oiroumstanoes. 

^ A peroon is e ligibl e for a Status A 

nonr e n e wabl e t e mporary lic e ns e if that 
p e rson: 
(A) — has — graduat e d — from — an — approv e d 
nursing program, — fil e d a oompl e t e d 
examination — application — form — with 
corr e ct fe e , — m ee ts all qualifications 
for lioensure by examination in North 
Carolina, and is sch e dul e d for the 
licensur e — e xamination — at — the — fifst 
opportunity after graduation; or 
{©3 — has fil e d an application for lio e nsur e 
without examination with correct fee 
and provid e d v e rification of awaiting 
the results of th e first writing of the 
examination develop e d by the Nation 
al Council of State Boards of Nuro 
ing. Inc. in anoth e r jurisdiction. 



{2) Th e Status A nonr e n e wabl e t e mporary 

lic e ns e e xpir e s on th e lesser of nine 
months or th e date a full lioen s o i s 
issu e d or notio e of failure of th e e xami 
nation is r e c e iv e d. 

{ty Status A t e mporary lioenso authorizes 

th e hold e r to: 
(A) — praotio e — eftly — m — nursing — situations 
wh e re dir e ct supervision by a regis 
t e r e d nurs e is availabl e and at a Gtan 
dard of oare of a fully lic e ns e d nurs e ; 

(B) — perform dir e ot pati e nt car e only, i.e., 
may — net — aoo e pt — authority — fef — ner 
assum e responsibility to assign, super 
vise, or dir e ot oth e r nur s ing person 
nel; and 
{€-) — participat e — in — sueh — orientation — and 
continuing e ducation activiti e s as the 
e mploy e r offers to prepar e th e hold e r 
of a Status A temporary license for 
the e mploym e nt position. 

(4) Holders of valid Status A t e mporary 

lioense — shall — identify — th e ms e lves — as 
R.N. Applioant (R.N. A.) or L.P.N. 
Applioant (L.P.N. A.), as th e oas e may 
be, aft e r signatures on records. 

(§) Upon e xpiration, r e vocation, or r e turn 

of the Statu s A temporary lio e ns e , th e 
individual is in e ligible to practice nurs 
ing as described in Paragraph (a)(3) of 
this Rul e . 
{¥) The Board may issue a Status P nonrenew- 
able temporary license to persons who have filed 
a completed application for licensure without 
examination with correct fee and provided valida- 
tion of an active license in another jurisdiction. 

(1) The Status P nonrenewable temporary 
license expires on the lesser of six 
months or the date a full license is issued 
or when it is determined the applicant is 
not qualified to practice nursing in North 
Carolina. 

(2) Status P temporary license authorizes the 
holder to practice nursing in the same 
manner as a fully licensed R.N. or 
L.P.N., whichever the case may be. 

(3) Holders of valid Status P temporary 
license shall identify themselves as R.N. 
Petitioner (R.N. P.) or L.P.N, petitioner 
(L.P.N. P.), as the case may be, after 
signatures on records. 

(4) Upon expiration, revocation, or return of 
the Status P temporary license, the 
individual is ineligible to practice nursing 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



49 



PROPOSED RULES 



as described in Paragraph (b) Item (2) of 
this Rule. 

Statutory Authority G.S. 90-171.33. 

****************** 

CHAPTER 53 - BOARD OF 
PROFESSIONAL COUNSELORS 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Board of 
Licensed Professional Counselors intends to amend 
rules cited as 21 NCAC 53 .0101 - .0104, .0201 , 
. 0301 , . 0303 - . 0304, . 0401 , . 0501 - . 0503; adopt 
rules cited as 21 NCAC 53 .0204, .0305, .0402; 
and repeal rules cited as 21 NCAC 53 .0105, 
.0203. 

1 he proposed effective date of this action is July 
1, 1994. 

1 he public hearing will be conducted at 1:00 
p.m. on April 21, 1994 at the North Raleigh 
Hilton, 3415 Wake Forest Road, Raleigh, North 
Carolina. 

£\eason for Proposed Action: These Rules have 
been written in order to comply with Article 24 of 
the North Carolina General Statutes 90-329-343 
and Section 2 G.S. 8-53.8 and Section 3 G.S. 
7A-551 as enacted by the General Assembly in 
their 1993 session. 

i^omment Procedures: Interested persons may 
present written or oral statements relevant to the 
actions proposed at the hearing to be held as 
indicated above. Written statements not presented 
at the hearing should be submitted before May 4, 
1994 to the following address: NCBLPC P.O. 
Box 21005, Raleigh, North Carolina 27619-1005. 

SECTION .0100 - GENERAL 
INFORMATION 

.0101 ORGANIZATION 

The North Carolina Board of R e gister e d Praotic 
ieg Licensed Professional Counselors is composed, 
by law, of seven members appointed by the Gover- 
nor to staggered terms of three years. The compo- 
sition of the Board shall include five regist e red 
licensed counselors ( three prnotioing couns e lors, 



and two couns e lor eduoators at least one counselor 
primarily engaged in counselor education, at least 
one counselor primarily engaged in the public 
sector, at least one counselor primarily engaged in 
the private sector, and two counselors at large). 
The remaining two members shall be 
public-at-large members appointed from the gener- 
al public. 

Statutory Authority G S. 90-328. 

.0102 PROFESSIONAL ETHICS 

The Board of R e gist e r e d Praotioing Licensed 
Professional Counselors has adopted the Cod e of 
Ethics of Ethical Standards promulgated by the 
American Association for Counseling and Dovcl 
opm e nt Counseling Association, March 1988, and 
any subsequent revisions of or amendments to the 
standards published by the American Counseling 
Association. 

Statutory Authority G.S. 90-334. 

.0103 PURPOSE OF ORGANIZATION 

The Board is charged by law with the responsi- 
bility for the regulation of the practice of counsel- 
ing and of the title " Regist e r e d Praotioing Licensed 
Professional Counselor" in the State of North 
Carolina. This includes establishing reasonable 
standards for licensure, examining the qualifica- 
tions of the applicants, and approving each for 
r e gistration licensure , as well as revoking, sus- 
pending, and renewing licenses. 

Statutory Authority G.S. 90-334. 

.0104 ORGANIZATION OF THE BOARD 

The Board shall elect a chairperson, 
vice-chairperson, and a secretary-treasurer from its 
members to serve for terms of one year and until 
their successors be elected and qualified . The 
Board shall hold at least two meetings each year 
and four members shall at all times constitute a 
quorum. Additional meetings may be held at the 
discretion of the chairperson or upon written 
request of any three members of the Board. 

Statutory Authority G. S. 90-334. 

.0105 MEETINGS 

Meetings of the Board, formal or informal, shall 
b e op e n to th e public. — Dat e s, times, and place s of 
m e eting shall b e furnish e d to anyon e requ e sting th e 
information and made available to th e pr e ss. 



50 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



PROPOSED RULES 



Statutory Authority G. S. 90-334. 

SECTION .0200 - DEFINITIONS AND 
CLARIFICATION OF TERMS 

.0201 SUPERVISION 

"Supervision" means supervision by a Register e d 
Practicing Licensed Professional Counselor whose 
registration license is current and who is in good 
standing with the Board or^ when one is inaccessi- 
ble, an equivalents credentialed mental health 
professional with a minimum of five years of 
counseling experience established by the Board as 
deemed acceptable by the Board , To be acc e ptabl e 
to the Board, sup e rvision must be arrang e d by th e 
candidate and approv e d in writing by th e Board. 

Statutory Authority G.S. 90-336(b)(3). 

.0203 STATEMENT OF PROFESSIONAL 
INTENT 

A Gtatement of prof e ssional intent ref e rs to a 
typed statement from the applicant for registration 
on file with th e Board, describing th e intended use 
of th e registration, — th e public — with — whom the 
applicant will work, and the counseling approach e s 
th e applicant plans to us e (including t e chniqu es and 
tools). 

Statutory Authority G. S. 90-336. 

.0204 PROFESSIONAL DISCLOSURE 
STATEMENT 

A professional disclosure statement refers to a 
printed statement that includes the licensee's 
professional credentials, the services offered, and 
the fee schedule. A current copy of this statement 
must be filed with and approved by the Board and 
a copy must be provided to each client prior to the 
performance of professional counseling services. 
Any changes in the disclosure statement must be 
submitted to and approved by the Board. The 
counselor must retain a file copy of the disclosure 
statement signed by each client. 

Statutory Authority G. S. 90-343. 

SECTION .0300 - HOW TO OBTAIN 
LICENSURE 

.0301 APPLICATIONS 

Inquiries are to be directed to, and applications 
and forms are to be obtained from and returned to 
the Executive Director Administrator of the Board T 
Box 12023, Raleigh, N.C. 27605 . 



Statutory Authority G S. 90-334; 90-336. 

.0303 WORK EXPERIENCES 

The applicant will have no less than two years of 
master's or post-master's counseling experience, or 
a combination of both, in a professional setting, 
including a minimum of 2,000 hours of supervised 
professional practice as defined by the Board. In 
addition, the The applicant will have a minimum 
of three references. Current members of the 
Board or relatives of the applicant may not submit 
references for an applicant. The three references 
shall be from persons in counseling or related 
professional areas, one of whom should have been 
or currently should be a supervisor of the appli- 
cant . 

Statutory Authority G. S. 90-334; 90-336. 

.0304 RECIPROCITY 

If a candidate is licensed or certified to practice 
counseling by a similar Board in another state, the 
North Carolina Board may, at its discretion, waive 
the formal examination requirements of a candi- 
date, provided the North Carolina Board accepts 
the standards and qualifications required for the 
practice of counseling in the candidate's lic e nsing 
credentialing state as e qual to substantially similar 
to or exceeding those required by North Carolina. 

Statutory Authority G S. 90-337. 

.0305 EXEMPTION FROM ACADEMIC 
QUALIFICATIONS 

Applicants who were engaged in the practice of 
counseling in North Carolina before July L, 1993 



shall be exempt from the academic qualifications 
required for licensure provided they make applica- 
tion for licensure no later than July 1, 1995. Such 



applicants must meet the examination and experi- 
ence requirements of the Board. 

Statutory Authority G. S. 90-338. 

SECTION .0400 - PRACTICE WITHOUT 
LICENSURE PROHIBITION 

.0401 RULE OF PROCEDURE 

When the Board of made aware of an individual 
who is engaging in the practice of counseling who 
is not credentialed by the North Carolina Board of 
Licensed Professional Counselors, the North 
Carolina Board of Examiners of Practicing Psy- 
chologists, the North Carolina Certification Board 
for Social Work, or the North Carolina Marital 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



51 



PROPOSED RULES 



and Family Therapy Certification Board, or other 
North Carolina Boards with statutory authority to 
regulate the practice of counseling, or who ]s not 
otherwise exempt from the provisions of g.s. 90, 
Article 24, or who is using the designation " R e gi s 
tared Practicing Licensed Professional Counselor" 
without being c e rtifi e d licensed by the North 
Carolina Board of Licensed Professional Counsel- 
ors , a registered letter with return receipt, showing 
delivery to addressee only, shall be mailed to the 
last known address of the person in question. The 
letter will direct attention to pertinent aspects of 
the law and the rules of the Board. If this does 
not induce said person to cease violating the law 
and to desist from practicing counseling , and 
and/or using the title " R e gist e r e d Practicing Li- 
censed Professional Counselor," the information 
shall be forwarded to the appropriate law enforce- 
ment authorities. T-h4s — violation — i s d ee m e d — a 
misdem e anor. — The violator upon conviction may 
b e punished by a fin e and the violator may b e 
impri s on e d. Violation of any provision of Article 
24 is a misdemeanor and, upon conviction, the 
violator may be punished by fine, by imprison- 
ment, or by both fine and imprisonment. 

Statutory Authority G.S. 90-331; 90-341. 

.0402 GROUNDS FOR DENIAL, 

SUSPENSION, OR REVOCATION 
OF A LICENSE 

When an individual who is licensed pursuant to 
G.S. 90. Article 24 is charged with violating any 
of the provisions of G.S. 90-340, the Board shall 
conduct proceedings to investigate the complaint. 
In appropriate cases, the Board shall conduct 
hearings in accordance with Board procedures to 
determine if grounds for denial, suspension, or 
revocation of a license have occurred. The Board 
shall then impose appropriate sanctions. 

Statutory Authority G.S. 90-334. 

SECTION .0500 - FEES 

.0501 APPLICATION FEE 

An application fee of s e v e nty fiv e — dollars 
($75.00) one hundred dollars ($100.00) will be 
assessed for processing each application. 

Statutory Authority G. S. 90-334. 

.0502 EXAMINATION FEE 

An examination fee of se v e nty fiv e — dollars 
($75.00) one hundred dollars ($100.00) will be 



assessed for administration and processing of the 
written examination. 

Statutory Authority G. S. 90-334. 

.0503 RENEWAL FEE 

The biannual biennial renewal fee of fifty dollars 
($50.00) not to exceed one hundred dollars 
($100.00) is due and payable by June 20 of the 
renewal year. Checks should be made payable to 
the North Carolina Board of R e gist e r e d Practicing 
Licensed Professional Counselors. Failure to pay 
the biannual biennial renewal fee within the time 
stated shall automatically suspend the right of any 
r e gi s trant licensee to practice while delinquent. 
Such lapsed r e gi s tration licensure may be renewed 
within a period of one year after expiration upon 
payment of all f ee s in arrears, in addition to the 
renewal fee plus a late renewal fee not to exceed 
twenty-five dollars ($25.00) fifteen — dollars 
($15.00) lat e r e n e wal f e e . Failure to apply for 
renewal within one year of the license's expiration 
date will require that a license be reissued only 
upon application as for an original license. 

Statutory Authority G S. 90-334: 90-339. 



52 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



LIST OF RULES CODIFIED 



1 he List of Rules Codified 


is a listing of rules that were filed with OAH in the month indicated. 


Key: 






Citation 


= 


Title, Chapter, Subchapter and Rule(s) 


AD 


= 


Adopt 


AM 


= 


Amend 


RP 


= 


Repeal 


With Chgs 


= 


Final text differs from proposed text 


Corr 


= 


Typographical errors or changes that requires no rulemaking 


Eff. Date 


= 


Date rule becomes effective 


Temp. Expires 




Rule was filed as a temporary rule and expires on this date or 180 days 



NORTH CAROLINA ADMINISTRATIVE CODE 
FEBRUARY 94 



[TLE 


DEPARTMENT 


TITLE 


DEPARTMENT 


1 


Administration 


21 


Occupational Licensing Boards 


2 


Agriculture 




14 - Cosmetic Art Examiners 


4 


Commerce 




26 - Landscape Architects 


10 


Human Resources 




32 - Medical Examiners 


15A 


Environment, Health and 




63 - Social Work 




Natural Resources 


25 


State Personnel 


18 


Secretary of State 







Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


1 


NCAC 4G 


.0212 




/ 








03/01/94 




2 


NCAC 48B 


.0101 




/ 








03/01/94 




4 


NCAC 3F 


.0202 


/ 






/ 




03/01/94 






6C 


.1401 


/ 






/ 




03/01/94 






13E 


.0901 




/ 








03/01/94 






16 


TOC 










/ 






10 


NCAC 22T 


.0101 


/ 






/ 




03/01/94 




.0201 


/ 










03/01/94 






22U 


.0101 


/ 






/ 




03/01/94 






22W 


.0102 


/ 






/ 




03/01/94 




.0201 - .0203 


/ 






/ 




03/01/94 






26H 


.0105 


/ 






/ 




03/01/94 







9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



53 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


15A NCAC 3H .0001 




/ 




/ 




03/01/94 




.0003 




/ 








03/01/94 




31 .0001 




/ 




/ 




03/01/94 




.0010 




/ 




/ 




03/01/94 




.0014 


/ 






/ 




03/01/94 




3J .0103 - .0104 




/ 




/ 




03/01/94 




.0107 




/ 




/ 




03/01/94 




.0301 




/ 




/ 




03/01/94 




.0303 




/ 








03/01/94 




3K .0103 




/ 




/ 




03/01/94 




.0105 




/ 








03/01/94 




.0203 






/ 






03/01/94 




.0301 




/ 




/ 




03/01/94 




3L .0102 




/ 








03/01/94 




.0202 




/ 




/ 




03/01/94 




3M .0201 




/ 




/ 




03/01/94 




.0507 




/ 








03/01/94 




.0511 


/ 






/ 




03/01/94 




30 .0101 - .0102 




/ 




/ 




03/01 '94 




.0108 




/ 








03/01/94 




.0201 




/ 








03/01/94 




.0203 - .0206 




/ 




/ 




03/01/94 




.0208 - .0209 




/ 








03/01/94 




3R .0002 




/ 








03/01/94 




.0004 - .0005 




/ 








03/01/94 




.0006 




/ 




/ 




03/01/94 




.0007 




/ 








03/01/94 




6F .0001 - .0005 


/ 






/ 




03/01/94 




18 NCAC 8 .1201 - .1204 


/ 










03/01/94 




.1205 


/ 






/ 




03/01/94 




.1206 


/ 










03/01/94 




.1207 


/ 






/ 




03/01/94 




18 NCAC 8 .1208 -.1211 


/ 










03/01/94 







54 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



LIST OF RULES CODIFIED 





Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


.1212 


/ 






/ 




03/01/94 




.1213 


/ 










0301/94 




21 NCAC 14H .0019 




/ 








03/01/94 




14J .0303 




/ 




/ 




03/01/94 




26 .0209 -.0211 




/ 




/ 




03/01/94 




32M .0006 




/ 








03/01/94 




.0009 




/ 








03/01/94 




63 .0501 




/ 








03/01/94 




.0502 






/ 






03/01/94 




.0503 


/ 










03/01/94 




.0504 


/ 






/ 




03/01/94 




.0505 - .0506 


/ 










03/01/94 




.0507 


/ 






/ 




03/01/94 




.0508 - .0509 


/ 










03/01/94 




.0801 - .0802 


/ 






/ 




03/01/94 




.0803 - .0809 


/ 










03/01/94 




.0820 


/ 










03/01/94 




25 NCAC ID .0205 




/ 




/ 




03/01/94 




.0211 - .0212 




/ 




/ 




03/01/94 




.0401 




/ 




/ 




03/01/94 




.0403 




/ 








03/01/94 




.0405 




/ 








03/01/94 




.0504 




/ 




/ 




03/01/94 




.0510 




/ 








03/01/94 




.0611 




/ 




/ 




03/01/94 




.1928 




/ 




/ 




03/01/94 




1H .0624 - .0625 




/ 








03/01/94 




.0628 




/ 








03/01/94 




U .0603 




/ 








03/01/94 




.0604 




/ 




/ 




03/01/94 




.0608 




/ 








03/01/94 





9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



55 



RRC OBJECTIONS 



1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d). 



COMMERCE 

Banking Commission 

4 NCAC 3F .0202 - Permissible Investments 
Agency Responded 
Agency Revised Rule 

Credit Union 

4 NCAC 6C .1401 - Signature Guarantee 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Marine Fisheries 

15 A NCAC 31 .0010 - Military Prohibited and Restricted Areas 

Agency Revised Rule 
15 A NCAC 3J .0107 - Pound Nets 

Agency Re\>ised Rule 
15 A NCAC 3K .0301 - Size and Harvest Limit 

Agency Re\'ised Rule 
15A NCAC 30 .0102 - Procedure and Requirements to Purchase License 

Agency Re\'ised Rule 
15A NCAC 30 .0204 - Marking Shellfish Leases and Franchises 

Agency Re\'ised Rule 
15 A NCAC 30 .0205 - Lease Renewal 

Agency Revised Rule 

Soil and Water Conservation Commission 

15A NCAC 6F .0001 - Purpose 

Agency Revised Rule 
15A NCAC 6F .0003 - Requirements for Certification of Waste Mgmt Plans 

Agency Revised Rule 
15A NCAC 6F .0004 - Approved Best Management Practices (BMPs) 

Agency Re\>ised Rule 
15A NCAC 6F .0005 - Technical Specialist Designation Procedure 

Agency Revised Rule 

Wildlife Resources and Water Safety 

ISA NCAC WD .0002 - General Regulations Regarding Use 
Agency Withdrew Rule 



RRC Objection 12/16/93 
Obj. Cont'd 01/20/94 
Obj. Removed 02/17/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 
02/17/94 



02/17/94 
02/17/94 
02/17/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 



03/17/94 



56 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



RRC OBJECTIONS 



HUMAN RESOURCES 
Aging 

10 NCAC 22T .0101 - Scope of Health Screening Services 

Agency Revised Rule 
10 NCAC 22T .0201 - Provision of Health Screening Services 

10 NCAC 22V .0101 - Scope of Senior Companion 

Agency Revised Rule 
10 NCAC 22W .0101 - Scope of Home Care Services 

Agency Revised Rule 

Medical Assistance 

10 NCAC 261 .0304 - Hearing Procedures 

Agency Revised Rule 

INSURANCE 

Financial Evaluation Division 

11 NCAC 11C .0308 - Foreign HMO: Successful Operation 

Agency Revised Rule 
11 NCAC 11F .0207 - Specific Standards for Morbidity, Interest and Mortality 

Agency Revised Rule 
11 NCAC 1 IF .0208 - Reserves for Wiiver of Premium 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Certified Public Accountant Examiners 

21 NCAC 8A .0105 - Purposes and Responsibilities 

Agency Repealed Rule 
21 NCAC 8F .0103 - Filing of Examination Applications and Fees 

Agency Revised Rule 
21 NCAC 8F .0112 - Candidate's Request to Sit in Another Jurisdiction 

Agency Revised Rule 
21 NCAC 8G .0409 - Computation of CPE Credits 

Agency Revised Rule 
21 NCAC 8J .0008 - Firm Registration 

Agency Revised Rule 
21 NCAC 8N .0103 - CPAs Outside North Carolina 

Agency Withdrew Rule 

Landscape Architects 

21 NCAC 26 .0209 - Unprofessional Conduct 

Agency Revised Rule 
21 NCAC 26 .0210 - Dishonest Practice 

Agency Revised Rule 
21 NCAC 26 .0211 - Incompetence 

Agency Revised Rule 



RRC Objection 


01/20/94 


Obj. Removed 


02/17/94 


RRC Objection 


01/20/94 


Obj. Removed 


02/17/94 


RRC Objection 


01/20/94 


Obj. Removed 


02/17/94 


RRC Objection 


02/17/94 


Obj. Removed 


03/17/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17/94 
03/17/94 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 

03/17/94 



01/20/94 
02/17/94 
01/20/94 
02/17/94 
01/20/94 
02/17/94 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



57 



RRC OBJECTIONS 



Medical Examiners 



21 NCAC 32B . 0402 - Fee 

Agency Revised Rule 
21 NCAC 32B .0706 - Fee 

Agency Revised Rule 
21 NCAC 32M .0006 - Prescribing Privileges 

Agency Revised Rule 



RRC Objection 
Ob). Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/17194 
03/17/94 
03/17/94 
03/17/94 
02/17/94 
02/17/94 



REAL ESTATE APPRAISAL BOARD 



21 NCAC 57 A .0210 - Temporary Practice 

Agency Revised Rule 
21 NCAC 57B .0207 - Administration 

Agency Revised Rule 
21 NCAC 57B .0306 - Instructor Requirements 

Agency Re\>ised Rule 
21 NCAC 57B .0603 - Criteria For Course Approval 

Agency Revised Rule 
21 NCAC 57 C .0104 - Petition to Reopen Proceeding 

Agency Revised Rule 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



03/1 7/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 
03/17/94 



REVENUE 



Individual Income Tax Division 



17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments 
Agency Revised Rule 



RRC Objection 03/17/94 
Obj. Removed 03/17/94 



STATE PERSONNEL 
Office of State Personnel 



25 NCAC ID .0211 - Salary Rate 

Agency Re\dsed Rule 
25 NCAC ID .0512 - Policy Making/ Confidential Exempt Priority Consideration 

Agency Re\'ised Rule 



RRC Objection 02/17/94 

Obj. Removed 02/17/94 

RRC Objection 02/17/94 

Obj. Removed 03/17/94 



STATE TREASURER 



Collateralization of Deposits 



20 NCAC 7 .0202 - Amount of Collateral Required to be Pledged 

Agency Revised Rule 
20 NCAC 7 .0603 - Acceleration of Maturities 

Agency Re\>ised Rule 



RRC Objection 03/17/94 

Obj. Removed 03/17/94 

RRC Objection 03/17/94 

Obj. Removed 03/17/94 



58 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina's 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



AL.1 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



93 ABC 0719 


Gray 


03/02/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1485 


Mann 


03/11/94 



93 COM 1622 Chess 03/01/94 



94 DOC 0252 Morrison 03/21/94 



ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 
Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 
Edward Ogunjobi, Cluh Piccadilli v. Alcoholic Beverage Control Comm. 
Robert Kovalaske, Nick Pikoulas, Joseph Marshburn, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limits, Inc. 



COMMERCE 

Savings Institutions Division 
James E. Byers, et al v. Savings Institutions 
CORRECTION 
Division of Prisons 

Gene Strader v. Department of Correction 
CRIME CONTROL AND PUBLIC SAFETY 
Crime Victims Compensation Commission 

Mary E. Haskins v. Crime Victims Compensation Commission 94 CPS 1406 

ENVIRONMENT. HEALTH. AND NATURAL RESOURCES 
Environmental Health 

Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 93 EHR 0924 Becton 03/03/94 

HUMAN RESOURCES 
Division of Child Development 

Gloria C. Haith v. Daycare Consultant 93 DHR 1787 Nesnow 03/14/94 

Facility Services 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 93 DHR 0805 Reilly 03/11/94 

Division of Medical Assistance 

Division of Medical Assistance v. Catawba Cty Depl. of Social Services 93 DHR 1778 West 03/04/94 

Division of Social Services 
Chihi Enforcement Section 



Gray 03/17/94 



William Heckstall v. Department of Human Resources 
Nash Andrew Newsome v. Department of Human Resources 



93 CSE 1077 
93 CSE 1170 



Reilly 03/14/94 

Mann 03/17/94 



9:1 



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59 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



AL.I 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



JUSTICE 

Alarm Systems Licensing Board 

Alarm Systems Licensing Board v. George P. Baker 

Training and Standards Division 

Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 

STATE PERSONNEL 

Agricultural and Technical State University 

Juanita D. Murphy v, Agricultural and Technical State University 

Department of Commerce 

Ruth Daniel-Perry V. Department of Commerce 

Department of Crime Control and Public Safety 

Fred L. Kearney v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 

Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

David R. Rodgers v. Jimmy Summerville, Stonewall Jackson School 

Mental Health/Mental Retardation 

Yvonne G. Johnson v. Blue Ridge Mental Health 

Department of Transportation 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportation 
Glenn I. Hodge Jr. v. Samuel Hunt. Sec'y Dept of Transportation 
Clyde Lem Hairston v. Department of Transportation 

STATE TREASURER 

Retirement Systems Division 

Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 



93 DOJ 0457 Nesnow 03/10/94 



93 DOJ 1409 Gray 03/03/94 



93 OSP 0708 Morrison 03/16/94 



93 OSP 0725 Chess 03/04/94 



91 OSP 0401 

92 OSP 1463 



93 OSP 1762 

94 OSP 0087 



93 OSP 1604 



93 OSP 0297- 1 
93 OSP 0500* 1 
93 OSP 0944 



West 03/18/94 

Reilly 03/21/94 



Gray 03/03/94 

Chess 03/16/94 



Becton 03/18/94 



Morrison 03/10/94 
Morrison 03/10/94 
Chess 02/28/94 



9:1 NCR 64 



9:1 NCR 61 
9:1 NCR 61 



93 DST 0785 Becton 03/18/94 



9:1 NCR 69 



* Consolidated cases. 



60 



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CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

93 OSP 0500 

93 OSP 0297 



GLENN I. HODGE JR., 
Petitioner, 



SAM HUNT, SECRETARY, DEPARTMENT OF 
TRANSPORTATION, 
Respondent. 



RECOMMENDED DECISION 



BACKGROUND 

This matter was heard in Raleigh, North Carolina, on November 9 and 10, 1993, by Senior 
Administrative Law Judge Fred G. Morrison Jr. The Petitioner initiated these contested cases in March and 
May of 1993 in order to appeal the decision of the Respondent Department of Transportation designating his 
position as policymaking exempt. 

Upon Respondent's Motion to Consolidate, on July 12, 1993, the cases were consolidated by Order 
of the Chief Administrative Law Judge. At the hearing, Petitioner was represented by Attorney John C. 
Hunter of Raleigh. Assistant Attorney General Patsy Smith Morgan appeared for the Respondent. 

ISSUE 

Whether the decision to designate Petitioner's position as policymaking exempt should be reversed 
or affirmed. 

STATUTES AND RULES INVOLVED 



N.C. Gen. Stat. 
N.C. Gen. Stat. 
N.C. Gen. Stat. 



§126-5(b) 

§126-5(c) 
§126-5(d)(l)and (6) 



Based on a preponderance of the substantial evidence admitted into the record of this case, the 
Administrative Law Judge makes the following: 

FINDINGS OF FACT 

1. Governor James G. Martin, a Republican, served as Governor of North Carolina from January of 
1985 to January of 1993. During those years the position of Chief-Internal Audit Section of the 
Department of Transportation was not exempted from the provisions of the State Personnel Act. 

2. Petitioner Glenn I. Hodge Jr., a Republican, began his employment with the State of North Carolina 
on January 1, 1990, at Pay Grade 71, in the Department of Human Resources. He transferred to the 
Respondent on January 1 , 1992, as an internal auditor at Pay Grade 71 . On May 23, 1992, Petitioner 
was promoted to the position of Chief-Internal Audit Section at Pay Grade 78. 



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61 



CONTESTED CASE DECISIONS 



3. As Chief of the Internal Audit Section, the Petitioner exercised broad flexibility and independence. 
In addition to supervising other auditors, he could decide who, what, when, how, and why to audit 
within the Department. While he could not order implementation of any recommendations, he was 
free to contact the State Bureau of Investigation concerning his findings. 

4. Governor James B. Hunt Jr., a Democrat, was elected in 1992 and began serving in January of 1993. 
He had previously served as Governor from January of 1977 until January of 1985. during which time 
the subject position was designated as exempt from the provisions of the State Personnel Act. 

5. During the early part of 1993, Respondent's officials recommended that the Petitioner's position be 
designated as exempt because of the nature and duties of the job. They thought it met the statutory 
definition of policymaking. No finding was made that a political confidant of the Governor was 
needed for the effective performance of this office. Upon being notified of the Governor's 
designation of his position as exempt, the Petitioner requested an investigation by the Office of State 
Personnel after which he filed petitions for contested case hearings pursuant to G.S. §126-5(h). The 
designation of Petitioner's position as policymaking exempt was the substantial equivalent of his being 
dismissed by Respondent. 

6. Under various agreements and arrangements with the United States Department of Transportation, 
Petitioner's responsibilities include the auditing of federally funded transportation programs and 
activities. Applicable federal rules and audit standards require that auditors of federally funded 
activities be free from organizational, external or other impairments to assure individual objectivity 
and operational independence in presenting opinions, conclusions, judgments and recommendations. 
The standards provide that auditors should be "sufficiently removed from political pressures to insure 
that they conduct their audits objectively and can report their findings, opinions and conclusions 
objectively without fear of political repercussion. Wherever feasible, they should be under a 
personnel system in which compensation, training, job tenure and advancement are based on merit." 

Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. G.S. 126-5(d)(l) allows the Governor to designate certain positions as exempt policymaking. The 
purpose is to allow the Governor to make partisan personnel decisions in order to have loyal 
supporters who will carry out administration policies. G.S. 126-5(c) and (h) allow employees in these 
positions to challenge such designations. The North Carolina Supreme Court reiterated in Abels v. 
Renfro Corp. , 335 N.C. 209, 218 (1993), that "it would look to federal decisions for guidance in 
establishing evidentiary standards and principles of law to be applied in discrimination cases." Dept. 
of Correction v. Gibson , 308 N.C. 131. 

2. The Supreme Court of the United States ruled in Branti v. Finkel , 445 U.S. 507, that when 
employees challenge these political decisions, "... the ultimate inquiry is not whether the label 
"policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring 
authority can demonstrate that party affiliation is an appropriate requirement for the effective 
performance of the public office involved." It is my conclusion that this standard must be followed 
when positions are declared policymaking exempt from the State Personnel Act, which was not done 
in this case. Respondent has not shown why a political confidant is a necessary requirement in this 
position. Branti states "it is equally clear that party affiliation is not necessarily relevant to every 
policymaking or confidential position." 

3. Reversal of the designation of this position is in order pursuant to G.S. 126-5(d)(6) which states: 
"Subsequent to the designation of a policymaking position as exempt . . . the status of the position 
may be reversed ... by the Governor ... in a letter to the State Personnel Director, the Speaker 
of the North Carolina House of Representatives, and the President of the North Carolina Senate." 



62 9:1 NORTH CAROLINA REGISTER April 4, 1994 



CONTESTED CASE DECISIONS 



Based on the foregoing Findings of Fact and Conclusions of Law, the Administrative Law Judge 
makes the following: 

RECOMMENDED DECISION 

The designation of the position as exempt be reversed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 10th day of March, 1994. 



Fred G. Morrison Jr. 

Senior Administrative Law Judge 



9:1 NORTH CAROLINA REGISTER April 4, 1994 63 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 
ADIVUNISTRATTVE HEARINGS 

93 OSP 0725 



RUTH DANIEL-PERRY. 

Petitioner, 

v. 

NORTH CAROLINA DEPARTMENT OF 
COMMERCE, 

Respondent. 




BACKGROUND 

This matter was heard on November 30, 1993, in Raleigh, North Carolina by Administrative Law 
Judge Sammie Chess, Jr. The Petitioner initiated the case on July 8, 1993 in order to appeal her dismissal 
from the Respondent agency. The record closed when the parties filed their proposed findings of fact and 
conclusions of law. 

APPEARANCES 



For Petitioner: 



Marvin Schiller 
SCHILLER LAW OFFICES 

Attorney at Law 
UCB Plaza, Suite 220 
Raleigh, NC 27612 



For Respondent: 



Charles J. Murray 

Special Deputy Attorney General 

N.C. Department of Justice 

P.O. Box 629 

Raleigh, NC 27602-0629 

ISSUES 



1. Whether Petitioner was terminated from employment in accordance with the requisites of 
N.C. Admin. Code t25: 01D .0519? 



2. If the answer to issue 1. is "yes", the Respondent is entitled to a recommended decision in 



its favor. 



3. If the answer to issue 1. is "no", the Petitioner is entitled to a recommended decision in her 
favor and is entitled to a recommended factual finding and conclusion of law that Petitioner was not dismissed 
for just cause. 



M 



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CONTESTED CASE DECISIONS 



The parties entered the following: 

STIPULATIONS 

1. All parties are properly before the Administrative Law Judge of the Office of Administrative 
Hearings, the Office of Administrative Hearings has jurisdiction of the parties and of the subject matter, and 
jurisdiction is conferred by N.C. Gen. Statute 126-37. 

2. The Petitioner, Ms. Ruth Daniel-Perry, was a permanent state employee within the meaning 
of N.C. Gen. Stat. 126-39 at the time of her discharge from employment from the Respondent by letter dated 
January 20, 1993. 

3. The Petitioner's salary at the time of her discharge was $36,583.00. Since the date of her 
discharge, Petitioner has taken all reasonable steps in seeking employment and was unemployed as of the date 
of this hearing. 

4. The Petitioner, in a telephone conversation on January 19, 1993, was told by Dr. J.E. Bryant 
on January 19, 1993 that he would send, by facsimile transmission, a letter to Respondent concerning 
Petitioner's medical condition. It is Petitioner's understanding that Dr. Bryant did send to Respondent a letter 
dated January 19, 1993 on that date. Respondent's position is that it never received that letter from Dr. 
Bryant. Dr. Bryant's letter states, in essence, that Petitioner was disabled at that time. 

Based on a preponderance of the evidence admitted into the record of this case, the Administrative 
Law Judge makes the following: 

FINDINGS OF FACT 

1. The Petitioner, Ruth Daniel-Perry, was a permanent employee within the meaning of N.C. 
Gen. Stat. 126-39 at the time of her discharge from the Respondent agency by letter dated January 20, 1993. 

2. N.C. Admin. Code t25: 01D .0519 provides as follows: 
".0519 UNAVAILABILITY WHEN LEAVE IS EXHAUSTED 

(a) An employee may be separated on the basis of unavailability when the employee becomes or 
remains unavailable for work after all applicable leave credits and benefits have been exhausted and agency 
management does not grant a leave without pay for reasons deemed sufficient by the agency. Such reasons 
include, but are not limited to, lack of suitable temporary assistance, criticality of the position, budgetary 
constraints, etc. Such a separation is an involuntary separation, and not a disciplinary dismissal as described 
in G.S. 126-35, and may be grieved or appealed. 

(b) Prior to separation, the employing agency shall meet with or at least notify the employee in 
writing, of the proposed separation, the efforts undertaken to avoid separation and why the efforts were 
unsuccessful. The employee shall have the opportunity in this meeting or in writing to propose alternative 
methods of accommodation. If the proposed accommodations are not possible, the agency must notify the 
employee of that fact and the proposed date of separation. If the proposed accommodations or alternative 
accommodations are being reviewed, the agency must notify the employee that such accommodations are under 
review and give the employee a projected date for a decision on this. 

(c) Involuntary separation pursuant to this Rule may be grieved or appealed. The employing 
agency must also give the employee a letter of separation stating the specific reasons for the separation and 
setting forth the employee's right of appeal. The burden of proof on the agency in the event of a grievance 
is not just cause as that term exists in G.S. 126-35. Rather, the agency's burden is to prove that the employee 
was unavailable and that the agency considered the employee's proposed accommodations for his unavailability 
and was unable to make the proposed accommodations or other reasonable accommodations. 



9:1 NORTH CAROLINA REGISTER April 4, 1994 65 



CONTESTED CASE DECISIONS 



(d) Agencies should make efforts to place an employee so separated pursuant to this Rule when 

the employee becomes available, if the employee desires, consistent with other employment priorities and 
rights. However, there is no mandatory requirement placed on an agency to secure an employee, separated 
under this Rule, a position in any agency." 

3. Respondent's discharge letter dated January 20, 1993, states as follows: 

"In our letter of January 13, 1993, we made our position clear. You were directed to return to work 
or provide the Banking Commission with a certified letter, from your current treating physician, detailing the 
reason(s) you could not return to work and the expected duration of his treatment/release. You failed to 
comply with either of these directions. We have given you numerous opportunities to provide us with any 
information that you had a debilitating illness or illness of any kind this you too failed to provide. 
Consequently, you leave us no alternative but to separate you due to unavailability. This separation is 
effective immediately. 

We have informed you that you received wages and benefits you were not entitled to because of your 
excess leave status. You were paid for part of November and all of December 1992. You need to remit a 
check in the amount of $4,409.55, for overpayment of wages. Additionally, you were provided with an 
annual advance of $500.00 which also must be remitted. Total amount owed to the Banking Commission is 
$4,909.55. Please make remittance immediately, payable to the Department of Commerce." 

4. The discharge letter does not state either what efforts were undertaken by Respondent to avoid 
separation or why those efforts were unsuccessful. 

5. The discharge letter does not provide the Petitioner with the opportunity to propose alternative 
methods of accommodation. Nor does the discharge letter state why alternative accommodations are not 
possible and provide a proposed date of separation. 

6. Prior to separation, the Respondent did not either meet with or state to the employee in 
writing, of the proposed separation, the efforts taken to avoid separation and why the efforts were 
unsuccessful, as required by N.C. Admin. Code t25: 01D .0519. 

7. Respondent neither informed Petitioner of a proposed date of separation nor was Petitioner 
given the opportunity at any meeting or in writing to propose alternative accommodations after the Respondent 
notified Petitioner of its intent to separate or discharge Petitioner, as required by N.C. Admin. Code t25: 01 D 
.0519. 

8. Respondent's letter to Petitioner dated January 13, 1993 states, in pertinent part, as follows: 
"In the event that you do not report to your assigned location as specified [on January 19, 1993] you will be 
separated due to unavailability." **** "If it is determined that you cannot return to work within the framework 
of our mission and we cannot accommodate you, then separation will ensue." 

9. Neither the discharge letter of January 20, 1993, nor the January 13, 1993 letter nor any other 
communication between Respondent and Petitioner meet either any or all of the requisites of N.C. Admin. 
CodeT25: 01 D .0519. 

10. On January 5, 1993, Petitioner by letter to Commissioner William T. Graham requested leave 
without pay due to her illness. 

1 1 . Petitioner had previously provided the Respondent with medical reports from Dr. James 
O'Rourke, Jr.. dated December 15, 1992, specifying Petitioner's medical problems (which indicated she would 
be able to return to work on December 21, 1992), and Dr. John T. Avant, dated December 22, 1992, 
specifying Petitioner's medical problems (which does not specifically indicate when Petitioner would be able 
to return to work). 



66 9:1 NORTH CAROLINA REGISTER April 4, 1994 



CONTESTED CASE DECISIONS 



12. Respondent was not satisfied with the medical reports of Dr. O'Rourke and Dr. Avant, as 
well as other physicians, concerning Petitioner's various medical problems. 

13. N.C. Admin. Code t25: 01D .0519 governs the separation of a permanent employee from 
employment due to unavailability when leave is exhausted. 

14. The Respondent did not discharge or separate Petitioner from employment in accordance with 
either any or all of the requisites of N.C. Admin. Code t25: 01D .0519. 

15. The Respondent has the burden of proving that its discharge of separation from employment 
of the Petitioner was done in accordance with N.C. Admin. Code t25: 01D .0519. 

16. The Respondent did not meet its burden of proof. 

17. The Petitioner was not dismissed with just cause. 

18. The Petitioner was unable to work due to her medical problems until March 8, 1993. 

19. The Petitioner was paid overpayments of wages and annual advance by the Respondent in the 
amount of $4,909.55, 

Based on the foregoing Stipulations and Findings of Fact, the Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1. Respondent has the burden of proving that its termination, discharge or separation of 
Petitioner from employment due to unavailability was done in accordance with the requisites of N.C. Admin. 
Code t25: 01 D .0519. 

2. Respondent failed to meet its burden of proving it terminated, discharged or separated 
Petitioner in accordance with N.C. Admin. Code t25: 01 D .0519. 

3. The Petitioner was not terminated, discharged or separated from employment in accordance 
with the requisites of N.C. Admin. Code t25: 01 D .0519. 

4. The provisions of N.C. Admin. Code t25: 01D .0519 have the force and effect of law and 
must be strictly followed. Harding v. N.C. Dept. of Correction , 106 N.C. App. 350, 416 S.E.2d 587, 590 
(1992). 

5. Petitioner is entitled to reinstatement, backpay beginning on March 8, 1992 until reinstated 
with the State of North Carolina at a salary equal to at least her final salary with Respondent and any 
legislative pay increases (minus Respondent's overpayments to her), attorneys fees, and all other benefits of 
continuous state employment. 

Based on the foregoing Stipulations, Findings of Facts, Conclusions of Law, and a preponderance of 
the substantial evidence in the record, the Administrative Law Judge makes the following: 

RECOMMENDED DECISION 

Petitioner is entitled to reinstatement, backpay beginning on March 8, 1992 until reinstated with the 
State of North Carolina at a salary equal to at least her final salary with Respondent and any legislative pay 
increases (minus Respondent's overpayments to her), and all attendant benefits of continuous employment with 
the State of North Carolina from the date of her termination until the date of her reinstatement. Attorney fees 
and costs should also be awarded Ms. Ruth Daniel-Perry. In addition, her personnel file should be 



9:1 NORTH CAROLINA REGISTER April 4, 1994 67 



CONTESTED CASE DECISIONS 



appropriately rectified so as to reflect that she was terminated, discharged or separated from employment 
improperly and without just cause. Any and all documents in her personnel file which indicated to any degree 
a contrary fact should be removed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to .the Office of Administrative Hearings . 

The agency that will make the final decision in this contested case is the State Personnel Commission. 

This the 4th day of March, 1994. 



Sammie Chess, Jr. 
Administrative Law Judge 



68 9:1 NORTH CAROLINA REGISTER April 4, 1994 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 
ADMINISTRATIVE HEARINGS 

93 DST 0785 



ROBERT A. SLADE, 
Petitioner, 



v. 



THE BOARD OF TRUSTEES OF THE NORTH 
CAROLINA LOCAL GOVERNMENTAL 
EMPLOYEES' RETIREMENT SYSTEM, 
Respondent. 



RECOMMENDED DECISION 



This matter was heard before Brenda B. Becton, Administrative Law Judge, on December 14, 1993, 
in Raleigh, North Carolina. At the conclusion of the hearing, the parties were afforded an opportunity to file 
written post-hearing submissions. 



APPEARANCES 



Petitioner: 
Respondent: 



Pro se. 

Alexander McC. Peters, Assistant Attorney 

General, N.C. Department of Justice, Raleigh, North Carolina. 

ISSUE 



Whether a contractual agreement between the Petitioner and the Town of Wake Forest providing that 
the Petitioner would retain active membership in the North Carolina Local Governmental Employees' 
Retirement System is binding upon the Retirement System even though it was not a party to the agreement. 

STATUTES AND RULES INVOLVED 

N.C. Gen. Stat. §128-21 (7a), (13), and (10) 

N.C. Gen. Stat. §128-24 

N.C. Gen. Stat. §128-30 

N.C. Gen. Stat. §§160A-147 to -152 

20 NCAC 2C .0802 

FINDINGS OF FACT 

From official documents in the file, sworn testimony of the witnesses, and other competent and 
admissible evidence, it is found as a fact that: 



1. 



The Petitioner is the former Town Administrator of the Town of Wake Forest. 



2. As Town Administrator, the Petitioner was employed by the Town of Wake Forest pursuant to the 

Town Charter and Chapter 160A, Article 7, Part 2 of the North Carolina General Statutes. 
Specifically, he was subject to the provisions of sections 160A-147 through 152 of the General 
Statutes. 



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CONTESTED CASE DECISIONS 



3. The Town of Wake Forest is a participating employer in the North Carolina Local Governmental 
Employees' Retirement System. 

4. As the Town Administrator, the Petitioner was not employed in a capacity which provided regular 
hours or any additional compensation for hours worked beyond those normally observed by employees 
at Town Hall. He was exempt from the federal Fair Labor Standards Act and served only at the 
direction and pleasure of the Board of Commissioners of the Town of Wake Forest ("the Board") 
regardless of the hours necessary. It was common for the Petitioner to work substantially more than 
the customary forty hours per week and to have contact with the Board members at their homes, his 
home, at local business establishments and by telephone and fax machine, both day and night. 

5. On January 29, 1993, following the resignation of the Mayor and a non-electoral change in the 
membership of the Board, the Petitioner submitted a letter of resignation to the Board. 

6. The Petitioner's letter of resignation was the culmination of personal negotiations by the Petitioner 
with the Mayor and the Board. The only other party present during these negotiations was the Town 
Attorney. 

7. On February 16, 1993, the Petitioner and the Board entered into a "Separation of Service 
Agreement," with an effective date of January 29, 1993. 

8. The agreement provided, inter alia , that the Petitioner would continue to receive his usual salary and 
all fringe benefits until August 2, 1993. The Petitioner was to be available to provide services when 
needed to the Board, the Mayor, and the administrative staff. 

9. The agreement also provided that the Petitioner would continue to work for one month on site at 
Town Hall. 

10. Pursuant to the Separation of Service Agreement, the Petitioner was to appoint an "Acting Town 
Administrator. " 

1 1 . During the severance period, the Petitioner provided services to the Board, the Mayor, and the 
administrative staff, performing many of the duties he had performed as Town Administrator. He 
acted as a resource on a number of new matters both during normal working hours and beyond. 

12. During the severance period, the Petitioner did not direct and supervise the administration of 
departments, agencies, or employees of the Town; he did not have responsibility for the hiring or 
firing of Town employees; and he was not responsible for preparing the budget or financial report 
for the Town, although he assisted in the preparation of these items. 

13. The Petitioner did not keep records of the amount of time that he spent performing work for the Town 
during the severance period. 

14. The work performed by the Petitioner during the severance period was performed only if and when 
requested by the Town, and the Petitioner would have been paid the full severance amount even if 
he had performed no work for the Town during that severance period. 

15. In early May, 1993, the Petitioner approached Ms. Marie P. Hinton, a benefits counselor with the 
North Carolina Local Governmental Employees' Retirement System, about matters regarding his 
retirement status. At that meeting, the Petitioner mentioned his agreement with the Town and Ms. 
Hinton questioned him about it. 

16. As a result of the Ms. Hinton's conversation with the Petitioner and a subsequent conversation with 
Dennis Ducker, Director of the Retirement System, the Petitioner was informed that he was not 
eligible for active membership in the Retirement System during the period of time covered by the 



70 9:1 NORTH CAROLINA REGISTER April 4, 1994 



CONTESTED CASE DECISIONS 



severance agreement. 

17. The Respondent informed the Petitioner and the Board that no further contributions should be made 
to the Retirement System on the Petitioner's behalf and the Town should recover all contributions 
made after March 2, 1993, and should refund to the Petitioner the employee contributions for that 
period. 

18. On June 3, 1993, the Petitioner wrote to Mr. Ducker, asking that the Respondent reconsider its 
decision. 

19. On June 11, 1993, Mr. Ducker responded by letter denying the Petitioner's appeal. Mr. Ducker 
informed the Petitioner that the basis for determining that he was ineligible to participate in the 
Retirement System was that the severance agreement did not provide for duties which "require not 
less than 1 ,000 hours of service per year. " 

Based on the foregoing Findings of Fact, the undersigned Administrative Law Judge makes the 
following: 

CONCLUSIONS OF LAW 

1 . This matter and the parties are properly before this Administrative Law Judge. 

2. The Petitioner bears the burden of proof of showing that the actions of the Respondent about which 
he complains were erroneous, improper, deprived him of property, or otherwise prejudiced his rights. 

3. North Carolina General Statutes section 128-24(1) provides that the membership of the North Carolina 
Local Governmental Employees' Retirement System is composed of "employees" of participating local 
governmental entities. 

4. An "employee" is defined in North Carolina General Statutes section 128-21(10) as "any person who 
is regularly employed in the service of and whose salary or compensation is paid by [a participating 
local governmental employer]. ..." 

5. Regularly employed is further defined as employment "in a regular position, the duties of which 
require not less than 1,000 hours of service per year." 20 NCAC 2C .0802. One thousand hours 
of service per year is the equivalent of 20 hours per week, or half-time. 

6. North Carolina General Statutes section 160A-147 and the Charter of the Town of Wake Forest give 
broad authority to the Board in dealing with the employment relationship they have with a Town 
Administrator. This authority includes setting the terms and conditions of employment (or separation) 
by means of a contractual agreement. 

7. Pursuant to the latitude granted to it under the provisions of section 160A-47 of the General Statutes, 
the Board entered into a severance agreement with the Petitioner which provided that he would retain 
all the fringe benefits and salary of the Town Administrator while providing the Town of Wake Forest 
with valuable expertise during the severance period. 

8. Since the agreement provided that the Petitioner was to appoint an Acting Town Administrator, it is 
clear that the Board did not consider that the Town Administrator position was vacant. Had that been 
the case, the Board could have appointed an "Interim Town Administrator." See, N.C. Gen. Stat. 
§160A-150. 

9. Pursuant to North Carolina Statutes section 160A-149, an "Acting Town Administrator" is only 
appointed by the "Town Administrator" when the Administrator is either absent or disabled. 



9:1 NORTH CAROLINA REGISTER April 4, 1994 71 



CONTESTED CASE DECISIONS 



10. While the Board, pursuant to its authority under §160A-147, changed the terms and conditions of the 

Petitioner's employment, the Petitioner still occupied the Town Administrator position until August 
2, 1993. 

1 1 The position of Town Administrator is one which is a "regular position, the duties of which require 

not less than 1,000 hours of service per year." 

12. North Carolina General Statutes section 128-30 provides that contributions made by employers and 
employees to the Retirement System are based upon the employees' compensation. Compensation 
is defined as 

all salaries and wages . . . derived from public funds which are earned as 
an employee in the unit of the Retirement System for which he is perform- 
ing full-time work. 

N.C. Gen. Stat. 128-21(7a). 

13. Although the Petitioner did not keep any time records, he testified that he performed work both 
during and after normal work hours during the severance period. In addition, the Petitioner testified 
that in his opinion, he performed many of the same services that he performed prior to the parties 
entering into the severance agreement. The Respondent did not offer any evidence that would refute 
the Petitioner's contention that he was still performing full-time work during the severance period. 
The statute does not require that one work a full-time schedule, only that one perform full-time work. 
Therefore, the Petitioner has shown by the greater weight of the evidence that he was receiving 
compensation for performing full-time work. 

14. The compensation paid to the Petitioner was compensation within the meaning of §128-30. 

15. The Petitioner was an employee of a local governmental entity earning compensation through August 
2, 1993 and, as such, he was entitled to membership in the Local Governmental Employees' 
Retirement System up through August 2, 1993. 

16 The five months of service credit denied to the Petitioner should be reinstated to his account upon 

payment of the appropriate amounts by him and the Town of Wake Forest for the period March 2 - 
August 2, 1993. 

RECOMMENDED DECISION 

The Board of Trustees of the North Carolina Local Governmental Employees' Retirement System will 
make the Final Decision in this contested case. It is recommended that the Board of Trustees adopt the 
Findings of Fact and Conclusions of Law set forth above and rescind its decision denying the Petitioner five 
months of service credit for the period March 2. 1993 - August 2, 1993. 

ORDER 

It is hereby ordered that the agency serve a copy of the Final Decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina General 
Statutes section 150B-36(b). 

NOTICE 

Before the Board of Trustees makes the FINAL DECISION, it is required by North Carolina General 
Statutes section 150B-36(a) to give each party an opportunity to file exceptions to this RECOMMENDED 
DECISION, and to present written arguments to those in the agency who will make the final decision. 



72 9:1 NORTH CAROLINA REGISTER April 4, 1994 



CONTESTED CASE DECISIONS 



The agency is required by North Carolina General Statutes section 150B-36fb) to serve a copy of the 
Final Decision on all parties and to furnish a copy to the Parties' attorney of record. 



This the 18th day of March, 1994. 



Brenda B. Becton 
Administrative Law Judge 



9:1 NORTH CAROLINA REGISTER April 4, 1994 73 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



A he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory: The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Jomt Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


T9 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heatmg & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Practicing Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



74 



9:1 



NORTH CAROLINA REGISTER 



April 4, 1994 



CUMULATIVE INDEX 



CUMULATIVE INDEX 

(April 1994 - March 1995) 

Pages Issue 

75 1 April 



Unless otherwise identified, page references in this Index are to proposed rules. 



COMMERCE 

Energy Division. 4 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

NPDES Permit, 3 

Wildlife Resources Commission, 38, 42 

FINAL DECISION LETTERS 

Voting Rights Act, 2 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Facility Services, 4 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Nursing, Board of, 45 

Professional Counselors, Board of Licensed, 50 

LIST OF RULES CODIFIED 

List of Rules Codified, 53 



9:1 NORTH CAROLINA REGISTER April 4, 1994 75 



NORTH CAROLINA ADMINISTRATIVE CODE 



The full publication consists of 53 volumes, totaling in excess of 15,000 pages. It is supplemented monthly 
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supplement service. Renewal subscriptions for supplements to the initial publication are available at 
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1 

2 

2 

3 

4 

4 

5 

5 

6 

7 

8 

9 
10 
10 
10 

10 
10 
10 
10 
10 
10 
10 
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19 


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20 


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21 


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22 


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23 


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25 


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26 


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27 


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28 


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29 


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REVISED i 




Continued 



Volume 


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Administrative Procedures 75.00 
Community Colleges 10.00 
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State Personnel 60.00 
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